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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 28 - Evidence - May 17, 2007

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OTTAWA, Thursday, May 17, 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 10:47 a.m. to give consideration to the bill.

Senator Donald H. Oliver (Chairman) in the chair.

[English]

The Chairman: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs is here today to continue its study on Bill C-31, an act 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 the 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, 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. It will also introduce at the federal level a requirement that voters provide identification at polling stations before they can exercise the right to vote.

Bill C-31 was formulated out of the recommendations made by the Chief Electoral Officer after the thirty-eigth general election. This bill aims to incorporate some of those measures as well as others proposed by the House Committee on Procedure and House Affairs and is guided by three overarching and interrelated themes: First, the integrity and accuracy of the National Register of Electors; second, voter identification at the polls; and, third, voter fraud.

To speak to us further on these matters, I am pleased to welcome Ms. Jennifer Stoddart, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada. Prior to her appointment in December of 2003, Ms. Stoddard was President of the Commission d'access d'information de Quebec, and organization responsible for both access to information and the protection of personal information. She has held several senior positions in public administration for the governments of Quebec and Canada, including at the Canadian and the Quebec human rights commissions.

Ms. Stoddart has been active in the Canadian Bar Association, the Canadian Institute for the Administration of Justice, and has also lectured on history and legal sciences at the University of Quebec at Montreal and McGill University.

Also with us today is Mr. Ken Anderson, the Assistant Commissioner (Privacy) for the Information and Privacy Commission of Ontario. Mr. Anderson taught privacy law at the University of Ottawa law school for three years and is a frequent speaker on access and privacy matters. Joining Mr. Anderson and Ms. Stoddart is Lisa Campbell, Senior Legal Counsel, Legal Services, Office of the Privacy Commissioner of Canada.

Jennifer Stoddart, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: I would like to introduce Carman Baggaley, Senior Strategic Policy Analyst, who is accompanying me.

Honourable senators, you received the letter I sent to you and, therefore, my remarks will be brief. As the Chairman mentioned in his opening statement, in a democracy we balance the effects and the implications of many rights. In the preamble to the law that you are studying, we talk specifically about preventing voter fraud and ensuring the integrity of our electoral process.

The right to vote is of course, at the heart of our democracy, but so too is the right to privacy. Although not a named right, it is recognized by our courts and by Canadian values generally. However, in order to enjoy both of these rights, we must have a system that encourages respect for them. Electors must have confidence that fraud will not compromise or annul the votes of individual Canadians. However, we must also have confidence that in the electoral process, our privacy rights, the rights to the control of our own personal information, are respected by that voter system.

We are concerned about allowing and encouraging Canadians of all walks of life and all conditions to vote. I ask you, honourable senators, whether the law, as currently drafted, encourages Canadians to vote or whether it raises serious questions about the eventual use of the personal information they will be forced to surrender to the permanent voters list.

Some details of the bill give me cause for concern, including the creation and wide distribution of a unique identifier along with birth date, both very strong identifiers. The creation of a unique identifier in the national voter identity system may increase the risk of identity theft. If this unique identifier were the social insurance number, we would have widespread distribution of both the social insurance number and date of birth of Canadians. As you know, these are classic keys to the authentication process and, thus, much of our most closely guarded personal identification. Another identifier may be used, but the problem still remains.

At the very least, measures should be taken to keep a unique identifier separate and apart from the other personal information of voters. I do not see this in the draft legislation as it is presently written.

The inclusion of the date of birth on electors lists released to members of Parliament, candidates, former candidates and political parties is, as presently constituted, an excessive intrusion into the privacy rights of Canadians. It does not seem to me that, in order to vote and ensure integrity in the voting process, we need to surrender our privacy rights, unless a case has been made for that surrender.

I have examined the testimony given both in the House of Commons committee and here and have not seen that we have made a case for widespread fraud and corruption in the Canadian electoral system. Therefore, without reaching a conclusion, I ask whether it is necessary to go this far given the concomitant problems.

I will not say that voter fraud does not and has never existed in Canada, but I believe it can be adequately addressed by some of the measures in this bill that require voters to present some kind of government photo identification or one of the alternate identifiers.

[Translation]

I want you to know that identity theft is a serious problem in Canada today.

I am sure that you are aware that the House Committee on Access to Information, Privacy and Ethics has just addressed the problem of identity theft.

You were its first witnesses and we emphasized the extent to which the problem has spread not only in Canada but also elsewhere. This is a global problem and one about which we unfortunately do not have enough information. How it gets started, who keeps doing it and exactly which steps we should take.

Against that background, this bill makes it possible to distribute sensitive information like the date of birth, which, as I mentioned previously, is the key to many other things such as our credit cards, our tax returns, et cetera. and an identity number that is yet to be developed. Potentially, this simply increases the vulnerability of all voters who will now see all that information distributed to a greater number of people.

Let me draw your attention to another problem. My colleague from Ontario has very interesting views on the subject, I feel. The sanctions that we can presently find in federal law are among the least severe of any jurisdiction in Canada in dealing with the misuse of personal information. Several provinces seem to have tougher sanctions and fines that they can impose on those who maliciously use the personal information with which they have been entrusted.

In addition, this bill seems to apply to official election agents or to candidates and not to the people who — as we do in our democracy — join a group to work for a candidate of their choice during elections. Our electoral law says little about people like that. We do not feel that candidates could be involved in identity theft. But I wonder about the people of all kinds who may join a political party for a short time during elections and who may have access to personal information. The law does not spell out their obligations and the consequences to them if they misuse that personal information.

[English]

In conclusion, this legislation as presently drafted, presents clear privacy problems. There is inattention in the law to the circulation of personal information to a vast number of people in the electoral process. It is quite possibly a disproportionate response to a perceived problem, and I do not believe that it has the necessary administrative infrastructure to guarantee the protection of the personal information that will be circulated.

Ken Anderson, Assistant Commissioner (Privacy), Office of the Information and Privacy Commissioner of Ontario: Honourable senators, as you know, I normally would not be presenting on this legislation, since our role is provincial but, having been invited, I propose to provide some information about what happens in Ontario and compare that to what is being proposed in Bill C-31.

When our office is making observations about these issues, we go to the precepts or the principles held by the privacy community. People often speak about the fair information practices and these are found around the world in various kinds of codes. In Canada, we often speak about the CSA code, which is one of your pieces of privacy legislation federally. In Europe they have other codes. They brought these together a year ago as the GPS, the global privacy standards code. A key feature in this code is data minimization. It has been a principle of the privacy community and it operates on the notion of the needs to know. You take the least amount of information needed for a purpose and give it only to the people who need to use it and keep it in a confined space. Then you look at collection, use and disclosure and see how people operate. We take those principles and put them against all legislation and provide our comments in Ontario.

What is the Ontario situation? In Ontario, we have a system where if you are at an election, a poll and require authentication, you can show a voter card that you received in the mail. There is also provision for a returning officer to prove who you are, on the spot. There is not currently a need to show identification. However, that is changing in Ontario. New legislation is proposed with a requirement to show photo ID. Our office did not object to this new legislation because the information is used at the point of voting. The information is not recorded. If I showed a driver's licence, there is no photocopy or writing down of the information. I prove who I am and move ahead with voting.

If I want to be on the permanent registers' list, there is a wrinkle. In Ontario, there are two lists. One is a permanent list including all voters. That list is periodically updated and includes your name, residence, birth date and gender. The Chief Elections Officer uses the birth date and gender to make sure their office has the right person. They ensure they do not have a person twice who has a similar name and when making up the voters list they have all the people who are eligible due to age. When entering an election, a voters' list is made from the permanent list excluding gender and birth date. It includes only the name and place of residence. That is handed out to candidates, political parties and so on.

There has been no move in Ontario to change that even though there will be new voter ID when voting. There is no move to hand out the birth dates so our office has not had to comment on that issue. Privacy was properly protected.

Regarding Bill C-31, we share the same concerns as the federal Privacy Commissioner. When handing out birth dates to a wide group of persons there are dangers for misuse of information.

We also have that concern, because in Ontario there is a section in our Election Act which provides for the Chief Election Officer to set up guidelines and standards for the use of information which is given out and indeed they do that. I provided some material for your review. Each of the prescribed political parties establishes policies for information management and provides them to the Chief Election Officer. The Chief Election Officer only provides the information to the individuals and parties following these guidelines to protect information. If you receive electronic information from the Chief Election Officer in Ontario and then the list is updated, you have to return your old disk to get the new disk. You have to sign and affidavit that you will not make copies of the old disk. There are a series of rules in place that are rather important.

We recommend you consider carefully this notion of handing out a birth date and whether or not the Privacy Commissioner deems it necessary. Also consider this notion about whether or not the election officials have the right tools to ensure proper handling of information.

The Chairman: Thank you very much for that presentation. I have a long list of honourable senators who want to ask questions. Ms. Stoddart, on page 2 of the letter that you sent us you said:

I am very concerned about the further disclosure of date of birth information through the voters list provided to election candidates and political parties. I fail to understand how the disclosure of birth information in this way would contribute to protecting or improving the integrity of the electoral process.

. . . and providing date of birth to politicians for the purpose of target marketing of constituents is neither a use consistent with protecting the integrity of the electoral system nor a use that that person would reasonably expect when registering to vote.

Your letter does not indicate what you would like to see changed, if anything. What if anything would you like to see changed in Bill C-31 to address these fears and concerns?

Ms. Stoddart: The model that Commissioner Anderson has just described to us is useful. If the date of birth is necessarily useful for the national register of electors, then a subset of information that would not include the full date of birth, and not include some kind of identifier, should be the one that is circulated more widely for identification purposes. Those who are expert in the administration of the electoral process should determine what information should be kept by the Director General of Elections whose record in the safe keeping of information is flawless. The information distributed would be a subset of that sensitive information.

Second, there should be very specific measures providing a framework for the dispensation of whatever information comes out from the Director General to the elected officials, former candidates and all people who have access to any kind of information. It is organized for a fraudster in a very useful way. It is organized either alphabetically or according to residences in a sequential form, in a geographical location which is a riding. With a bit of imagination you could do wonders with this with the wrong intentions.

We should have a series of measures that keep track of to whom this information is provided, who has access to it, and the conditions of the data minimization principles to which Mr. Anderson referred.

Finally, I was surprised when cursorily comparing the sanctions for electoral violations in the Canada Elections Act with those of other jurisdictions. There is a a sensitivity to this type of information. The Canada Elections Act arguably goes back a long way when identity theft and the electronic transmission of information were not the phenomenon they are today.

We should look at increasing sanctions in the Canada Elections Act for the misuse of personal information in conjunction with information received from the Director General of Elections.

The Chairman: Do your recommendations have to be in the statute or could they be done by regulations?

Ms. Stoddart: My staff and I have not reviewed that question. I am not familiar with the regulations. If they could be, that would be one solution. It is of concern to see that they do not seem to be in the law. They could possibly be in the regulations.

Senator Baker: We have a serious problem. The problem is that this bill is before the Senate and you, as the Privacy Commissioner, were identified as the person who did not object to the contents of the bill by the minister.

I want to refer you to testimony given before this committee by the minister himself. He said before this committee just a couple of days ago:

I was mindful of the actual evidence of the Privacy Commissioner at committee and 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.

Then Minister van Loan refers to a question that Michel Guimond from the Bloc asked you:

You see no legal problem with regard to the legislation that you are charged with applying. Correct?

Jennifer Stoddart responds: Correct.

Then the minister says:

In her view, there are no privacy issues and she is the Privacy Commissioner. Had she felt there was a serious privacy question that may have given me more concern.

To your recollection, is the minister correct in what he is saying?

Ms. Stoddart: The discussion, to the best of my recollection, about a year ago, was largely theoretical and contextual. My answer at the time was you have to look at the use of each bit of personal information in the particular context in which it is used, and generally the rule is the use of stronger identifiers should ideally respond to a real situation of need. There is also the issue of which the honourable senators are aware, that different provinces take different approaches to these.

Following my testimony, as I recollect, I clarified my position in a follow-up letter, to reiterate my concern about the use of strong identifiers in a situation where they would be widely disseminated.

Senator Baker: The Chief Electoral Officer was before the committee yesterday and said that there is no security guarantee. He has no control. There are no security safeguards whatsoever that he can guarantee if this bill passes the way it is concerning the privacy of the information on dates of births or anything else. Therefore, the standard by which we judge whether the information should be given has been commented upon by the Chief Electoral Officer in the negative, that no security can be provided concerning the information if this law passes the way it is.

You will recall that this was the standard established by the Federal Court of Appeal in Privacy Commissioner Re in 2000, which overturned a Federal Court decision, in which the Court of Appeal said that as long as there was a guarantee of security, as long as the safeguards were there, then the customs minister can have the information that the Employment Insurance Commission had given. The Chief Electoral Officer says no, there is no security.

Now, let me continue with what the minister said, again referring to you. The question was from Senator Stratton, ``If someone has the date of birth plus the person's name, would that lead to a potential of identity theft''?

Mr. Van Loan replied, ``They were cognizant of that issue at committee. That is why those questions were asked of the Privacy Commissioner.''

He continued, ``I have the evidence of the Privacy Commissioner here. I have seen the correspondence from the Privacy Commissioner.''

Then I interjected and said. ``Perhaps she changed her mind.''

Minister Van Loan replied, ``I do not know that she has.''

This is just a couple of days ago.

Then we heard from Senator Joyal, who was talking about the Charter. He is a recognized expert on the Charter. He asked a question, and the minister said:

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.

So we have a problem here of communication. Do you agree? Is the minister correct in his repeated references to you, saying that you support this bill as it presently stands with the date of birth and everything there?

Ms. Stoddart: Again, honourable senator, you have before you a copy of my letter to the senatorial committee. I think there is, perhaps with the passage of time, a bit of confusion. When I appeared before the committee last spring with the then Director General of Elections, and I think he was with me at that time, to the best of my recollection, I was not commenting on the present legislation. This was more of a general discussion on issues of voter identification and so on.

Second, I think the second part of your question has to do with the issue of safeguards.

Senator Baker: I was just commenting that the Chief Electoral Officer said there are not any.

Ms. Stoddart: You do not need an answer, fine.

Senator Baker: Let me ask you a final question. The Chairman, as a former professor of law, keeps us in tune here.

I was a member of Parliament and sat on a committee back in the late 1970s or early 1980s when the Privacy Act was passed. I sat on the Justice Committee at the time, and I recall a safeguard in that legislation. I presume it is still there. I do not think the Privacy Act has changed over the years. I am referring to section 39.

Ms. Stoddart: You are quite right, honourable senator that it has not changed, and that is the very problem. Certainly the Privacy Act enjoins all those who have Canadians' personal information in the context of the federal government to treat it with care and keep it confidential except in particular circumstances.

It does not, however, go to filling the vacuum that I have just noted to you in the Canada Elections Act amendments that are currently before you in Bill C-31. I remain concerned about the particular safeguards that are not there.

I would also draw to the attention of the honourable senators that I have repeatedly called for the repeal or the revision of the Privacy Act. I think the House of Commons committee charged with this will look into this in the fall. This is not up to current standards of data protection, as I have said many times. I do not think it is the gold standard to which Canadians should be referring at the present time.

Senator Baker: I have to congratulate you. You have done a magnificent job in the position you have been in, and so has your staff and so has Mr. Anderson.

The problem is that we have a bill. We could amend it. It would be defeated back in the House of Commons, most likely, or they may accept it, although that is very unlikely. There is a provision in your act that allows you to do something in cases of urgency like this, and I think it is a matter of urgency. We have a huge misunderstanding here on your role. There is a provision in your act, section 39, that says that you can report to Parliament in extraordinary circumstances. You can produce a letter to Parliament in urgent circumstances that goes to the Speaker of the Senate and the Speaker of the House of Commons to correct this complete misunderstanding that the minister has of your position.

Would you consider using that mechanism? Everyone seems to be hiding behind you, and that is the testimony that I read out for you. Would you consider using section 39 of the act to make it very clear that you are not in favour of this date of birth and you have serious concerns about it?

Ms. Stoddart: I thought I already made it clear. I made it clear in writing that I had serious concerns several times over the course of the past few months, but I will look at your suggestions.

The Chairman: Before turning to Senator Fraser, in response to a question from Senator Baker, you said you sent a follow-up letter where you made yourself clear.

I have before me now a letter dated February 15, 2007 that you sent to the Honourable Paul Dewar, M.P., House of Commons. The letter is in very much the same form and content as the letter you sent to this committee.

Is that the letter to which you are referring to Senator Baker?

Ms. Stoddart: Yes, it is.

The Chairman: I will table this letter, then.

Ms. Stoddart: I think it says the same thing.

The Chairman: I have it in both English and French.

Senator Joyal: If I recall, the minister referred to an earlier letter dated in June. Therefore, we now have three letters from the Privacy Commissioner, as I understand it. There is a letter from her dated in June that was quoted by Minister Anderson in his opening remarks, there is the letter of February 15 and now there is the letter dated in May.

Could we see the letter dated in June and to which the minister referred?

Ms. Stoddart: I in fact did send a letter on June 15 to the chair of the House, of which I have English and French copies. I could not find it initially, so I thought perhaps I was incorrect.

The Chairman: Do you mind tabling that or leaving it with us, both the English and French versions?

Ms. Stoddart: Yes, it was sent to the chair of the Standing Committee on Procedure and House Affairs.

Senator Fraser: Ms. Stoddart, welcome back to the Senate. I start from the position that voter fraud is much easier and therefore possibly more widespread in Canada than we usually want to think.

In assorted election campaigns since I became a senator, I have sat down every day to do the phones, working from the electoral list. Every single page, on average, contained the name of at least one person who had died or moved. Sometimes when you call that number and you ask for John Jones, Ms. Jones gets very angry and says, ``My husband died 10 years ago and I have been trying to get his name off this list forever, and they will not take his name off the list.''

Obviously, somewhere in the vast realm of Canada, some person of less than honest intent could use that information and turn up pretending to be John Jones at the polls, and I cannot believe that does not happen. Similarly, with all the cards that are sent out to voters, many of whom have moved, particularly in urban settings, all you need to do is say, ``John Jones does not live here anymore, I will just vote in the name of John Jones or get someone I know to do so.''

The problem, obviously, is that no one can know how real the problem is in practice. Certainly, it seems to me that there are vast opportunities there for the system to be abused. I do not think I am telling any secrets to the few dishonest Canadians who would want to do that.

I was initially persuaded that we probably did need quite rigorous identity checking procedures. The arguments about identity theft are interesting, and the date of birth question is obviously of great concern.

My attention then turned to the new identifier. You raised the possibility that it could be in the social insurance number. Although the bill is not strictly clear on this, I do not think it could be because what it actually says is the registered electors must also contain for each elector a unique, randomly generated identifier that is assigned by the Chief Electoral Officer. Of course, the Chief Electoral Officer is not the one who assigns you your social insurance number. It seems to me it would have to be something new if it were to be the Chief Electoral Officer who assigns it. However, the proposition is for this identifier to be not only on the register but also on the list. I do not find anywhere in this bill any provision that the elector should know what his or her identifier is.

I have two questions. First, if the elector does not know and does not have any document saying this is your permanent identifier number that you will take with you wherever you move in Canada; is that not in some way wrong, a denial of that person's right to know what the government knows about that person?

If the person does have a number, does it have to be accompanied by a card or some other document? If so, does that open the door to privacy abuses? Do you see where I am going?

I am quite confused about all of this. I would like us to write to the Chief Electoral Officer and get answers to some of these questions about his intentions.

In the meantime, Ms. Stoddart, could you comment on these various conundra?

Ms. Stoddart: I think there are a couple of conundra. The answer to them is very important, and we do not see the answers to some of these questions that are being raised.

Elections Canada is subject to the Privacy Act. Although we have not thought about it or had to deal with it, I do not see why Canadians would not have access to that personal information.

I will ask Ms. Campbell to talk about that particular legal issue. I would think voters should be able, but I am not sure.

Lisa Campbell, Senior Legal Counsel, Legal Services, Office of the Privacy Commissioner of Canada: Good morning, senators. You raise a good point.

The draft legislation is unclear as to the purpose of this unique identifier. Precisely that if it is not shared with electors, then what is the purpose of it? How is it used to verify identity? The purpose of it is not clear to us.

We raised serious concerns that if it exists and contains the key to all of that personal information, then it is very important to see what it is used for, how it is stored and to whom it is released. It would be like an access key to date of birth, gender, all mailing addresses and your full name. We are concerned about that, and clarification is needed as to its use.

With respect to the other point that I think you raised, we are saying that with the provisions for requirements to provide photo identification, there is no need for the release of date of birth further than it already exists in the National Register of Electors. Does that address your question?

Senator Fraser: Yes it does. I am starting to think that the photo identification should do the trick, particularly if it includes the address. This is all extremely interesting.

The Chairman: The Chief Electoral Officer reached the same conclusion. The problem is what if you are a homeless person and you do not have a driver's licence or something that has photo identification? What happens then?

Ms. Campbell: I think the draft legislation actually provides for those situations, persons who are either homeless or in transit. There are alternate situations.

The Chairman: Can they be vouched for?

Ms. Campbell: Yes.

Senator Jaffer: Mr. Anderson, in the last Quebec election, there was the issue of women who covered their faces with veils. The province was clear that the women would have to uncover their faces in order to be identified and so have the right to vote. I think you would have a greater problem in Ontario if you decide to do that. Have you thought about that issue? How will you handle it?

Mr. Anderson: No, we have not thought about that issue. Not that we are not interested, but it has not presented itself to us yet. In our conversations with the Chief Electoral Officer, we had not spent time on that issue. I am sorry, but I do not have a useful answer for you.

Senator Jaffer: Perhaps we can start the dialogue in the sense that with respect to photo identification, if a woman comes to vote but her face is covered, I guess you will have to think about how you will handle that. Do I understand you correctly?

Mr. Anderson: Yes. Ms. Stoddart brought that to my attention before we came here this morning. It is not something we have worked on. Therefore, I am sorry that I cannot present you useful information, but I thank you for sending something back the other way. It is something that I will take home for our office to consider.

The Chairman: That is an extremely important question, Senator Jaffer. Thank you.

Senator Joyal: Welcome to all the witnesses.

In answer to a question from the chair, you avoided pronouncing on how much weight should be given to the recommendations you made to improve the bill. The chair cited regulation as an option.

Clause 5 of the bill, at page 2, which amends subsections 45(1) to (3) of the Canada Elections Act, reads:

(1) By November 15 in each year, the Chief Electoral Officer shall send to the member for each electoral district and, on request, to each registered party that endorsed a candidate in the electoral district in the last election, a copy in electronic form — taken from the Register of Electors — of the lists of electors for the electoral district.

There is an obligation for the Chief Electoral Officer to send, in electronic form, the list of electors.

Further, in proposed subsection 45(2):

The lists of electors shall set out each elector's surname, given names, civic address and mailing address, date of birth and the identifier that is assigned to the elector . . . .

I repeat, ``The lists of electors shall . . . .'' In other words, it is an obligation. It is difficult to understand that by regulation we will amend the obligation of the Chief Electoral Officer. That seems to me to be quite obvious. In Law 101, you learn that you cannot change by regulation what is in a statute. If we were to avoid the distribution of dates of birth, for instance, we would have to amend the bill. I do not think there are two ways to do that.

Ms. Stoddart: I think you have answered your own question, senator. We all understand that regulations cannot amend the substantive law.

I do not know what regulation power is attached to the Canada Elections Act, but it might be possible to spell out some of the things that Mr. Anderson was talking about in Ontario, that is, guidelines and the conditions under which this information is shared and, in greater detail, with whom. That is probably all that could be done with regulations, if such regulation power exists.

The Chairman: That was my question as well, and that was your earlier response.

Senator Joyal: Let me take a step further in that direction. Clause 9, on page 4 of the bill, amends section 55 of the Canada Elections Act. It states:

(1) The Chief Electoral Officer may enter into an agreement with any body responsible under provincial law for establishing a list of electors . . . .

Note ``. . . may enter into an agreement . . . .''

Proposed subsection (2) states:

The Chief Electoral Officer shall include in the agreement conditions regarding the use and protection of personal information given under the agreement.

Therefore, when the Chief Electoral Officer makes an agreement with a province, he can restrict the use of the list by imposing conditions, but when he gives the list to a registered federal party, a candidate or an MP, he cannot, according to this statute, impose the same kind of restrictions.

Your suggestion is to impose restrictions on the use of the data in the way that Ontario is doing, which is a fair compromise. The date of birth, for instance, is given for the purpose of drafting the list, but when the list is given to a candidate or a party, it is omitted. That date is merely for the purpose of drafting the list in the Office of the Chief Electoral Officer.

That will limit the risk of identify theft and retain the protection of reasonableness under section 1 of the Charter, that being that you take measures proportionate to the objective you want to meet.

It seems to me that proposed section 55 is good policy, but proposed section 45 seems not to give the same protection to Canadian electors when the list is used at the federal level versus when it is used at the provincial level. We would have to reconsider that approach in order to give effect to your recommendation, but I do not see how we could do that with regulations. The statue is clear about restricting the ability of the Chief Electoral Officer to pass on the information he has received to a party or a candidate.

Ms. Stoddart: I cannot but agree with you, senator. It is for specialists to look at the extent of regulation-making power. However, the principle is that whatever is set out in the act cannot be substantially modified by regulations.

Senator Joyal: My last question is about the increased penalties that both Mr. Anderson and you have mentioned, Ms. Stoddart. The federal penalty is the lightest in Canada.

Clause 10(2) of the bill amends section 56 of the Canada Elections Act. It says that it is an offence to use the electoral list improperly. That is covered by section 485 of the act, which states:

(1) Every person who contravenes paragraph 56(e) . . . is guilty of an offence.

Section 500(1) of the act provides:

Every person who is guilty of an offence under any of subsections 484(1) . . . is liable on summary conviction to a fine of not more than $1,000 . . . .

It seems to me that we cannot change the penalty through regulations either. We would have to amend the Canada Elections Act in order to prevent identity theft in the way you have indicated, that is, that it is an additional risk based on the information given in the new elections act. I do not see how we could, by regulation, increase the level of penalty provided for in the act at sections 487 and 500 in relation to clause 56 that creates the offence per se.

What level of penalty would you consider a sufficient deterrent for people who would have access to the electoral list, including, as Senator Fraser said, anyone entering the headquarters of a candidate to volunteer?

Ms. Stoddart: I do not want to substitute myself into the role of the Senate, which is to suggest substantive legislative reforms. In mentioning that, I simply wanted to bring to your attention the fact that in this draft legislation there are very low-level sanctions.

I have not looked in greater detail at what an appropriate level of fine would be, but I believe that with the proliferation of identify theft we should increase fines from $1,000 to a very high amount. This is a huge social problem. We have not made a detailed study, but in some provinces some types of misuse of electoral information are punishable by fines of up to $50,000.

I bring to your attention that a $1,000 fine is not a serious deterrent to obtaining a complete set of information, particularly in electronic form.

Senator Joyal: Could you provide us with the fines imposable at the provincial level?

Ms. Stoddart: Yes.

Carman Baggaley, Senior Strategic Policy Analyst, Office of the Privacy Commissioner of Canada: Briefly, we did a comparison of some of the other statutes. The maximum penalty is from Alberta, which is $100,000. British Columbia and Manitoba both have maximum fines of $10,000 and in B.C., there is a prison term of up to two years. At least three Western provinces, coincidentally, have very significant fines of up to $100,000. We can provide you with this information in writing.

Ms. Stoddart: We can table this information, honourable senator. It is in one official language but, if it will be of use to the committee, we could do that immediately.

Mr. Anderson: You will see on that chart that in the Ontario version of the Elections Act the fine is $5,000. I cannot recommend a good number, but I can tell you that it has been only a few years since Ontario passed legislation for the protection of personal health information. Here we are looking at personal information of Ontarians, of Canadians, and asking, what happens when information is misused? You find in that health legislation that the Ontario legislature thought that $50,000 fines were an important feature.

Senator Mahovlich: I wish to thank the witnesses for appearing here today.

Whatever happened, to identifying people by their fingerprints? Is there any electoral system in the world that uses the fingerprint, or is that too private?

Ms. Stoddart: I will perhaps give a quick answer, and Commissioner Anderson may have other things to add.

I hope we do not move to an electoral system that makes use of our fingerprints. As Privacy Commissioner, I have increasing concerns about the number and type of identifiers that we will have to use to go about our everyday business, and our everyday business, in my opinion, includes voting. Each of those identifiers, in turn, can usually be trumped by some new technological advance. Each of those technological identifiers like fingerprints has its own problems of false positives and false negatives. You can get the wrong person voting on the prints, or you can get the right person who may not feel too well that day and whose fingerprint is just a bit different not being able to vote. Although it seems interesting, I think that we should be very wary of those kinds of approaches.

Mr. Anderson: You asked if any jurisdictions in the world use that method. I have not done any research on it, but I am sure many of you have seen there are places that do use fingerprints and other markers to note when people have voted. I thought in some senses this was to put an impression on the finger so that it is not only the leaving of the fingerprint, but if someone came back to vote twice, you would see there was already a mark on the finger. There was some sort of stain or identity which brings you back, Senator Fraser, to this notion of fraud.

Going into the fingerprint area, the problem with this, honourable senators, is that the fingerprint itself, as Commissioner Stoddart has said, has a lot of issues about accuracy — the actual biometric and how it is used and how you press it.

Senator Mahovlich: Do the police not use it as identification?

Mr. Anderson: Criminal lawyers at trials also spend a lot of time on this because there accuracy issues are involved with this type of identification. I follow your train of thought, but it takes us to a different station.

In order to try to deal with the issue of the straight biometric, you move to a biometric template. Once you go to a biometric template and you can reliably and accurately reproduce the fingerprint, the next feature will be a scanner at a poll booth and so on. At that point, the issue of using the fingerprint for identification and authentication means that you move the information against a database. I am sure that Commissioner Stoddart would say, ``Oh oh, a database.'' You have to now ensure the accuracy of the database and the accuracy of the reading over. You start into what we talk about at airports with scanning passports and all this stuff about false positives and false negatives. Are we getting the right readings? We get into biometric encryption and encrypted biometrics, and it becomes evermore tricky and costly. It is an idea that people are trying, but I think it has problems.

Senator Jaffer: I am originally from a jurisdiction where people used to put their fingerprint, but those are people who could not read. That was not a fingerprint, just a press of your thumb because you could not sign. That is very different from a fingerprint.

Mr. Anderson: Yes.

Senator Bryden: In your opinion, will this bill encourage greater voter participation?

Ms. Stoddart: I am not a specialist on voter participation. I think the Chief Electoral Officer could perhaps come back and tell you about voter participation.

I did raise the question that if Canadians feel unsure about what their personal information will be used for, and into whose hands it is travelling in the electoral process, it would certainly do nothing to encourage their confidence in the system.

Mr. Anderson: In Ontario, a person can have himself or herself removed from both the permanent register and the voter's list and still vote. If you were not comfortable having your information sitting there, you can have it removed. There is a system for doing that. You can come to the polling station and show some identification and vote. You do not lose the right to vote. That would be of concern to me is if there was sufficient concern from voters that they decided to remove their names and just show up at the polling station. If you had to authenticate person after person, that would become a problem.

Senator Bryden: I want to follow up on that, because I think Senator Jaffer raised that last night. We had a video conference from Jim Quail from Vancouver, Ms. Campbell, who indicated that people can go to the polls and be vouched for. Both Senator Jaffer and Mr. Quail discussed fact that one person can vouch for only one person. Under these amendments, you cannot vouch for more than one person. That dramatically prejudices the homeless, the poor, the elderly and persons in homes suffering with physical disabilities. The example was given that there are people who run soup kitchens and food banks and who deal with homeless and poor people all the time and know them very well. Those people who do that would not be able to go, under this bill, with 10 of those people and say, ``Yes. I meet these people every day, and they are who they say they are.''

I think the conclusion that was drawn is that it is probably a violation of our Charter of Rights and Freedoms to deny people the opportunity to vote simply because of the way the bill is drafted. However, the fact is that it always appears to adversely affect the people who are most at risk, whether through poverty, disability or homelessness and so on. These tools that we draft to make sure that no one ever makes a mistake, that no one ever defrauds the system by voting the name of someone off a tombstone, affect the most vulnerable in our society.

In that situation, Ms. Campbell, have you found anything in these amendments and in this legislation that would allow those people to vote in the manner that they used to vote?

Ms. Campbell: Senator Bryden is right. Section 143 provides that people who do not have suitable identification can take a prescribed oath, provided they are vouched for by another person. It also provides there cannot be serial vouching. In other words, you cannot vouch for more than one person. The situation you raise is a problem and it is a problem for voter turnout and the people who are socio-economically disadvantaged. It is not so much a privacy issue as we view it, but definitely a socio-economic issue.

The Chairman: Ms. Stoddart, Mr. Anderson, Mr. Baggaley and Ms. Campbell, thank you very much for your presentations. They have been useful, helpful and informative. On behalf of the committee I would like to thank you very much for coming here and presenting.

Honourable senators, for our second panel, we have with us from the National Anti-Poverty Organization, NAPO, Mr. Rob Rainer, Executive Director and the Director Ms. Cindy Buott. NAPO is a non-profit, non-partisan association that represents the interests of low-income people in Canada. A volunteer board of directors from every province and territory of the country directs and governs NAPO's work. All board members are either living in poverty or have lived in poverty at some point in their lives.

Our next panellist, from the Canadian Association of Professional Access and Privacy Administrators, is Ms. Sharon Polsky, Policy Director. CAPAPA is dedicated to the ongoing professional development, education and expanded expertise of individuals who work in the information access and protection of privacy field.

Rob Rainer, Executive Director, National Anti-Poverty Organization (NAPO): We thank the Standing Senate Committee on Legal and Constitutional Affairs for this opportunity to speak to Bill C-31. I will talk briefly about NAPO and outline our general perspective on Bill C-31, and Ms. Buott will speak to several specific concerns.

We were founded in 1971. We are dedicated to poverty eradication, which is not just reduction of poverty but eradication, which we know is a distant dream but it is a dream to be maintained by a society as rich and prosperous as Canada.

We pursue our mission of poverty eradication in three main ways. First, we work to ensure that the concerns of low- income people are reflected in federal policy and decision-making. Second, we work to defend the human and economic rights of low- income people. Third, we work to assist local and regional organizations to bring the voices of low-income people in Canada to the decision-making and policy-making processes in their communities. The first two of these strategies apply to the proceedings today.

We are here to express the concerns of low-income people regarding how Bill C-31 could disenfranchise their Charter protected right to vote in an election of members of the House of Commons or of a legislative assembly. We are here to advocate for a more supportive approach to electoral eligibility so that those at risk of disenfranchisement become not less able but, in fact, more able to exercise their Charter protected right to vote.

NAPO is unique among national NGOs working on poverty issues. All of our board members are individuals who are currently living in poverty or who have lived in poverty. They know from personal experience what it is like to survive on levels of income that are insufficient to meet basic needs. They also know what it is like to struggle to obtain documentation of one's identity or to prove one's identity or place of residence.

NAPO was founded in 1971 to help bring the voice of people like our board members to proceedings such as this today. NAPO is concerned about issues of income security as they affect those caught up or falling through Canada's, unfortunately, torn social safety net. We are speaking, in general, of several million people whose incomes fall far below, just below, or at just above the informal so-called ``poverty lines'' in Canada. Visible expressions of the torn social safety net include the rise of food banks across Canada, from one in 1981 to about 650 today and the tragedy and absolute scandal of homelessness across the country.

We are also deeply concerned about the apparent rise in social exclusion or how some people in our society are effectively excluded from meaningful participation in the greater society due to alienating factors including, for example, poverty and the ever-widening gap in income between those at or near the top of the income strata and those at or near the bottom.

We view certain aspects of Bill C-31 through the lens of social exclusion. If it is to reach Royal Assent in its current form, we are confident and deeply concerned that it would have the unfortunate side effect, no doubt unintended but real nonetheless, of further marginalizing already heavily marginalized segments of Canadian society; namely, the homeless and other low-income citizens who could experience great difficulty in meeting the requirements of documentation for voter eligibility.

Cindy Buott, Director, National Anti-Poverty Organization (NAPO): I am Cindy Buott, and I have been an advocate for low-income people for the last 10 years, so I am involved with many different organizations such as ISAC, the Coalition for Social Justice and other organizations.

NAPO has four principal concerns about Bill C-31. They all have to do with how the bill would make it more difficult, not less difficult, for the homeless and other low-income citizens to exercise their right to vote.

We should first clarify the meaning of homelessness. Homelessness is the absence of a place to live. Those who suffer it include what have been termed the ``absolute houseless'' and ``concealed houseless.'' One may think typically of the homeless as being those found sleeping on streets, in public places such as downtown urban parks or in shelters. This is because the absolute houseless are the most visible members of the houseless population; yet, it is estimated that they comprise only 20 per cent the homeless. The concealed houseless are those who are temporarily housed with friends or family because they cannot afford shelter for themselves. Without this privately offered housing opportunity, they would be living on the streets or in shelters. The concealed houseless are extremely hard to estimate because they are so hidden. They are approximately 80 per cent of the homeless people in Canada.

In Ottawa, the Alliance to End Homelessness estimates there are about 9,000 individuals who use shelters in the national capital at some point in 2006. Nearly a 2 per cent increase over the numbers estimated in 2005. The alliance estimated that 82 per cent of the people who used shelters in 2005, or about 7,260 people, were of voting age.

We can assume that homelessness is typically an acute problem in cities. It is somewhat less of a problem in small towns and rural areas where the cost of housing tends to be more affordable and where housing supports from within the community can be greater.

By extrapolating the figures for Ottawa to Canada, it can be estimated that there are approximately 250,000 people in Canada who are absolutely houseless and another one million people who are concealed houseless. Of this 1.25 million people who are houseless, based on Ottawa's percentage figure it can be estimated that approximately 1,250,000 people in Canada are homeless and of voting age. Clearly a very large number of people could be adversely affected by adjustments to the voting system that have the affect of restricting voter eligibility.

Our concern is with proposed section 143(2)(a), the requirement for photo identification. Obtaining photo identification can be financially difficult for the homeless and for low-income people. Even the cost of $15 to $20 to obtain photo ID can be very difficult especially when you do not have enough money for public transportation, housing, food and those types of issues. As a low-income person and as an advocate, I have dealt with those factors myself. Without photo identification, I have experienced barriers and restrictions.

Simple things that we take for granted such as getting a library card, getting a bus ticket and staying in a hotel; any one of those things acts as a barrier. If we have to have photo ID, there will be many problems and it is another hurdle or deterrent to prevent low-income people from voting.

Our second concern is with section 143 on the provision of proof of residence in order to be termed eligible to vote. Roughly 1.25 million homeless people in Canada have a difficult and often impossible task in providing this proof. While we understand why proof of residence is important to align voters with voting districts, there should be flexibility to accommodate those with residence that is temporary, such as in the shelter system.

Use of the proposed personal, unique, identifying numbering system would help thwart the attempt of any voter, whether in permanent or temporary residence, to cast a vote in more than one riding or polling district. Often people in the shelter system do not have permanent residence or are living on the street. These people do not have any proof of residence.

A third concern is with section 143(3) is where it is specified that:

An elector may instead prove his or her identity and residence by taking the prescribed oath if he or she is accompanied by an elector whose name appears on the list of electors for the same polling division and who

(b) vouches for him or her on oath in the prescribed form.

The trouble with this clause is that in many cases a prospective voter may not be able to find an eligible person from within the same polling division to vouch for him or her. We see no reason why vouching needs to be restricted to people whose name has to appear on the list of electors for the same polling division in which a prospective voter wishes to vote. If a prospective voucher can provide proof of his or her citizenship and voting age, why should that not suffice?

Our fourth concern is the provision in proposed subsection 143(5); that an elector can only vouch once for another prospective elector. We fail to perceive any rationale for this rule. If someone has been deemed qualified to vouch for one person, why should he or she be prohibited from vouching for more than one person? In each and every case the voucher must do so by oath with, presumably, stiff penalties for fraudulent participation in the electoral process.

In closing, we wish to stress the importance of Elections Canada investing as much as possible in voter enumeration process. Groups like the Alliance to End Homelessness in Ottawa have worked with Elections Canada to address the low voting rate among marginalized and homeless Canadians. A proactive approach is necessary to ensure that marginalized Canadians are aware of their right to vote and the process they must go through to register their vote. Goals should be set by Elections Canada for registering voters who do not have a fixed address but otherwise should qualify for voting.

By measuring the progress against these goals and evaluating what is working and not working in registering voters, the government can help ensure that as many citizens as possible exercise one of the most precious rights afforded to them.

Given the foregoing concern, NAPO recommends that Bill C-31 be amended to: First, eliminate the requirement for photo identification; second, to allow for anyone to vouch for the identity of another person irrespective of where the voucher himself or herself resides; and, third, to empower a given voucher to vouch for more than one individual.

Thank you for this opportunity to share our concerns and recommendations.

Sharon Polsky, Policy Director, Canadian Association of Professional Access and Privacy Administrators: It is my pleasure and privilege to be here, and I thank you all for inviting me to speak on behalf of the Canadian Association of Professional Access and Privacy Administrators, CAPAPA.

With the support of the privacy and information commissioners of Canada and of the Alberta privacy commissioner CAPAPA is developing the standards, competencies and governance structure to certify information access and privacy professionals in Canada.

CAPAPA was created in 2002 and its members are representative of the larger Canadian context except that our members' awareness of privacy and access laws and the real-life application and limits of those laws is perhaps somewhat greater than among the general population.

Our members are Canadian citizens, parents, members of military and law enforcement families. All of our members are actively involved in their communities. Our members understand the complexities of the issue and appreciate the good intentions of some of the changes proposed for the Canada Elections Act.

We recognize the very real danger that privacy-invasive amendments would bring to all Canadians. In particular, proposed subsection 107(3) will require that every voter's name, address and birth date shall be distributed in hard and electronic copy to all candidates and political parties.

Some private information has always been available on voters' lists, but mandatory electronic distribution is very different from printed rosters stapled to telephone poles. Today's scanning technology makes it easy to convert a paper-based voters' list into an electronic list, which would then be available for manipulation and data mining. Restricting distribution to paper obviously is not the answer.

Compounding CAPAPA's concern is the fact that political parties and candidates are outside the purview of Canadian privacy laws. The very fundamental components that identify 22,466,621 people — the number of voters in Canada on the list for the 2004 federal election — will be published and provided to candidates and political parties that have absolutely no obligation under privacy law to protect or limit the use or dissemination of that information. Common sense, good business ethics, morals and the threat of minimal after-the-fact penalties will be the only control.

The proposed changes will deny voters the most fundamental right enshrined by Canadian privacy laws: The right to grant or deny consent to the collection, use and distribution of their private information.

The only option available will be to refuse to register to vote, in an attempt to keep private information private. Many have already told me that is precisely what they will do because their privacy is more important to them than exercising their right to vote.

Quebec's practice of collecting and distributing information has been referred to. That legislation includes penalties for the person who abuses the information and the person who is responsible to safeguard the information. The proposed amendments in Bill C-31 offer no such protection.

Minister Van Loan assured this committee a week ago that the Canada Elections Act provides penalties of $1,000 or three months in jail for misusing information collected under the Canada Elections Act, and that was referred to earlier today. That applies if you are caught. That is a pittance. At the going rate on the street of $50 per name, the 2004 voters' list is worth $1.1 billion. I am not suggesting that anybody would be as foolish or foolhardy as to get the entire voters' list and try to sell it, but there are opportunists among us.

As Senator Joyal noted last week, paying $200 would entitle virtually anyone to receive the Canadian voters' list; small investment, great potential returns.

Financial crimes like identity theft continue to be viewed as events that merely involve stuff and hurt no one. On the contrary, significant privacy breaches occur daily and have led to severe consequences up to and including suicide. The number and frequency of occurrences and the causes and costs of these events are too much to discuss today, and I would be pleased to provide the committee with a detailed report exploring how effectively and routinely people expose sensitive private information.

Privacy and other laws and the threat of penalty simply are not enough. Just look at the Bank of Canada, Revenue Canada, CSIS, Alberta Health and Wellness, the British Columbia government, CIBC, the Bank of Montreal and every other government, agency, corporation and organization in Canada and abroad that was — by law — supposed to keep private information private but did not.

When major institutions cannot contain the most sensitive information they have collected and with the growth of data mining and converged telecommunication technologies, it is fantasy to believe that the wealth of valuable private information on the voter list will not be breached. Whether it is breached intentionally or unintentionally is irrelevant.

The proposed amendments will make the application of existing privacy and access laws infinitely more challenging for CAPAPA members and for election officials because there will be no way to verify that anyone's identification is valid.

What is the worst that could happen if someone voted in my stead, inadvertently denying me the opportunity to vote, and risk casting the deciding vote that elects someone I might not have voted for? The likelihood of that happening is pretty remote.

The worst that could happen by forcibly distributing my private information into an uncontrolled and uncontrollable environment is significantly greater and far more likely. It has been said that every bad policy around the world is justified based on the philosophy that it is good for society, and that the individual must sacrifice his or her selfish rights in favour of the needs of the many.

If passed into law, these short-sighted privacy-invasive amendments will place 22 million Canadians — and many more as our youth register to vote — at great risk for the sake of protecting us from rare instances of voter fraud. CAPAPA looks forward to the elections act being amended to actually protect Canadians.

Thank you, Mr. Chairman and senators. We do appreciate you considering these most important issues.

Senator Jaffer: Do you know the voting rate amongst the homeless?

Mr. Rainer: I am not sure if anyone has attempted to do such a survey.

Ms. Buott: I am not sure of the exact percentage because it has not been tracked. I can speak for our area within the shelter system. During the last election, we had the highest turnout of low-income people coming out to vote because we worked very hard to ensure that they could come to vote. I cannot give you exact numbers, just that it was a higher percentage. On average, low-income people do not vote. We are working hard to make sure they can exercise their right to vote.

Senator Jaffer: I respect that you do not have that information; no one does. You have been working for 10 years; is it your experience that people do not exercise their vote twice on the same day? Not exercising their right vote is the bigger issue.

Ms. Buott: That is the bigger issue.

Senator Jaffer: Yes, it is a bigger issue, especially around the homeless.

Ms. Buott: People in shelters.

Senator Jaffer: I want to thank you for your comments on social exclusion and the right to vote. You have been helping homeless people. I appreciate that you have shown us that homelessness is not just a person on the street; there are many homeless. I am sure we will remember that. I understand now when a homeless person goes to vote they swear an oath that they live in that area. Is that correct? They state who they are and they live in the area. Do they do that?

Ms. Buott: Yes. It is done.

Senator Jaffer: They are already doing that. If it was not correct they would face greater penalties than under this act; is that true.

Ms. Buott: Yes.

Mr. Rainer: Previously, Senator Bryden discussed the serious issue of a person being able to vouch only once. I am not certain of the rationale for that rule and it has not been provided to us. We see no compelling rationale for that at all. The senator described a situation where people working in shelters know that population and should be able to vouch for as many as many people they could honourably identify. It is a sensible thing to ensure the homeless can exercise their right to vote.

Senator Jaffer: I work with this population in my city. The bigger issue is that if I am not from that poll, I can no longer vouch for them.

Mr. Rainer: Definitely, and that is a problem.

Senator Jaffer: I cannot serially vouch for them or for that person because I am not from that poll.

Senator Joyal: I will continue with the issue of vouching for voters. Let us take a parallel to the vouching capacity. When a citizen applies for a passport, it involves the capacity of that citizen to get a passport. That person must have a respondent who must establish his equality as a respondent and that person must know the person for a minimum of two years. This is a framework to follow and establish a vouching capacity for a homeless or an analphabète. I will return to the literacy issue later.

What is the characteristic of the passport vouching system? The characteristic is to corroborate the information that the applicant provides the form. The voucher signs and testifies that this is true information; it is to corroborate information to get access to a passport. The person who corroborates for that person is someone who has known that person in a professional capacity; that is, a notary, a lawyer or a commissioner of oaths. The list is long now, longer than it was 40 years ago, when I applied for my first passport. In other words, you must have known the person for a reasonable period of time, two years, and have known the person in a professional capacity. You do not need to live in the same district as the person at the time the person applies for the passport. You can live anywhere, provided you have known the person in that capacity.

Let us apply those criteria to vouching for a person responsible for a shelter or for a food bank. Yesterday I gave the example of the food bank. This could be someone who operates a food bank. They have regular customers such as homeless people who come daily. I gave the example of l'Accueil Bonneau in Montreal, a well-known shelter and food bank. That nun might live in another area of the city. There is a possibility of maintaining the principle of vouching but it could be adjusted to situations whereby a person could vouch for a group of persons, even though the voucher does not live in the same district.

Let us take a professor at a college or university who not live in the place where the university is located and he vouch for only one student in his class. That is too restrictive. It makes sense to devise a system with more flexibility to allow a larger capacity to vouch, while maintaining the simplicity of knowledge of a person for a reasonable period of time and a person having a capacity to know the person, such as a professional or a notary. We are not asking for a notary but for a person who, in the exercise of his or her function, knows the person who is applying. If, at the identity table they have a problem with the voucher's identity they can always swear the person. That seems to be easier than section 5, where you vouch for only one person and as Senator Jaffer stated, and must live in the district. I can see the need to avoid proliferation of someone who sells his capacity to vouch for everyone. If you establish those criteria, you could maintain a vouching system in a reasonable way that would ensure the principle of the bill in the relation to vouching but would create the flexibility to meet the objective expressed.

Mr. Rainer: Obviously one of the challenges with the homeless population is their place of temporary residence can be very short term. Therefore, being able to find someone who knows you for a length of time such as in the passport framework might be difficult for some people. They might have known someone only for a week or a month but would ask that person to vouch for them and that person in turn would feel confident vouching.

The electoral system, with the need to prove your citizenship could also be a challenge for the person who wants to do the vouching. How do they know the person is a Canadian citizen and has not just arrived in Canada the month before, even though they have struck up a great relationship? There are obvious challenges there. Generally, the principle should be to provide as much reasonable flexibility as possible to accommodate people who otherwise would have difficulty being permitted to vote. Further thought needs to be given to the principles of voting. We agree with the principle to be allowed to vouch for more than one person. Where the voucher resides should not come into the equation.

Senator Joyal: Did the comment that you made on the homelessness apply in the same context for people who are analphabète, illiterate?

Mr. Rainer: I am not sure. I have not really thought about it. An illiterate person would have difficulty handling documentation and need someone at the voting booth or the polling to help him or her move through the process. An illiterate person would also be able to at least have at his or her disposal the appropriate ID, be it photo identification or birth certificates or whatever. I am not sure if there is the same degree of concern.

Senator Joyal: Ms. Polsky, what suggestion would you provide to us in relation to the use of the electronic disk which will be the form into which the list of voters will be published or released by the Chief Electoral Officer?

There is nothing in the bill that provides for constraint into which the electronic disk is publicized. In other words, the bill does not stipulate the disk cannot be reproduced nor does it stipulate a form that cannot be duplicated. The technology exists that prevents information from being changed. There is nothing in the bill that frames the issuance of the electronic disk. That seems to be an open door to identity theft.

When one reads the bill, especially in relation to the fine or the penalty, as we have said earlier this morning and in prior meetings, nothing gives the signal that this is something that belongs to the Chief Electoral Officer. It is as if, once you are registered as a party or as an individual that has paid $200, you put the disk in your pocket and it is yours. The passport is not even yours; it belongs to the government, as you know. However, the principle is that there is nothing in the bill that establishes that the list does not belong to you personally, as a party or as an independent candidate. It seems to create an incorrect concept of establishing the public nature of the list, which means it belongs to anyone, provided he or she has paid the minimum fee. Is that not an element of concern to you?

Ms. Polsky: Absolutely it is, senator. Our view is that technology is wonderful, but it is only a vehicle. It is the people and human nature, human behaviour; it is people who use or abuse the technology.

I agree; to have the entire voters' list on a disk transmitted electronically, even with encryption, there is a lot of technology available to try to protect the information, but it eventually does go into, according to these amendments, an uncontrolled, uncontrollable environment. That information goes into an environment of users who do not face any requirements under privacy law, of users who the Privacy Commissioner's office and others across the country spend a great deal of time, effort and resources trying to educate what constitutes private information, how to handle it, what to do or not to do with it.

Most users are well-intentioned. I am not suggesting, nor is the Canadian Association of Professional Access and Privacy Administrators suggesting, that users are malicious or that the majority are opportunists. Most errors happen because they were trying to do the right thing or they did not know better or they did not realize. It is a situation of having a disk floating around that can be copied. A volunteer working for a party has access to that disk, but the volunteer has not had a background check or a credit check and his or her motives are unknown.

From discussions with various ministers' constituency offices, as long as you can demonstrate you support the party, you are welcomed into the fold and given access to the information. There are no limits in these amendments that we can see that would restrict who uses the information or who has access to it. As we said in our submission, it is up to good ethics and good business practices. It is wide open. It is a big risk.

Senator Joyal: It seems to me that if we want to prevent unwelcome use of the list, we should state that the list belongs to the Chief Electoral Officer. You have it for a period of time. The list should not be duplicated because it does not belong to you, per se. You have possession and use of it, but you do not have the property of it.

Second, the bill should state that if the Chief Electoral Officer issues another disk later on and an election happens two or four years later, the person must return the disk to the Chief Electoral Officer. The disk must be returned before another disk is distributed; it is like a passport. When you want another passport, you have to send your passport back. They punch holes in it so you cannot use it anymore.

There are ways to frame the danger with the disk. For example, the disk belongs to everyone; you have access to it and you keep it forever. You are a candidate in one election and you have paid $200. You are no longer a candidate in the next election, but you still have the list. The bill does not state that an independent candidate has to return the list. There are no limits to the use of the list in the bill.

It seems to me there is a danger there that the signal is not right. The signal does not give the information of the nature of the electoral list. That is an important point at the moment, that you are putting in the list all kinds of information that could make it easier for anyone to misuse the list.

Ms. Polsky: I could not agree more. You are using the example of the passport. There is a difference, though. A passport is one tangible item. If I return it to the passport office, I have returned it. With electronic information, there is no telling how many copies have been made. Has someone put an entire copy onto a portable thumb drive, something you could have on your key ring or in your penknife, and remove it? It is uncontrolled and uncontrollable.

We prefer, as the Ontario commissioner discussed this morning, the global privacy standard: only collect what little you absolutely need and distribute it as little as is necessary. Minimize the risk beforehand. Do not only try to clean it up, penalize, and look for people after the fact. Privacy commissioners, police; the list is very long of people who try to find offenders afterwards. They do not have the resources. It is an international problem. Internationally, the police organizations are trying to stem the inappropriate flow of information. It is difficult.

Senator Mahovlich: You mentioned that your organization was founded in 1971. Has the gap between the rich and the poor increased since that time? If the number of poor people in Canada continues to increase, this bill will make it more difficult for them. This bill will increase our problems.

Mr. Rainer: To respond to the first question, I do not have the precise figure, but the Canadian Centre for Policy Alternatives is one of the groups that has done a great deal of analysis around what they call the growing gap. There is a website called growinggap.ca, where you can get extensive information on this subject. Earlier this year, Statistics Canada released an analysis on Canadian incomes. That also has some hard data with regard to the growing gap. There is no question that the gap has been happening and that it continues year by year. It is certainly a factor in what we perceive to be a growing social exclusion.

Walking the streets in Ottawa, you encounter people who are effectively excluded from society by virtue of their relative desperation. Sadly, we predict more of this rather than less. The further this gap grows, the further the so- called social safety net frays, and the more we need an overhaul on Canada's social policy. We need to make that a top priority. Our group and other groups are calling for this to become a higher political priority for Canada, because the trends are troubling. Perhaps Ms. Buott would like to add to that.

Ms. Buott: The number of homeless people has increased in our community. Social isolation and exclusion follows that as well. Those are issues that we need to be looking at.

Mr. Rainer: I would like to reference the work of Cathy Crowe, whose name may not be familiar to you. She is a street nurse in Toronto. She has been a nurse for all of her career. For the past 18 years, she has worked with the homeless population in Toronto. She has become incredibly knowledgeable about the specific issues and trends that the homeless face.

Ms. Crowe has just written a book. She was here in Ottawa yesterday for its release. She is on a cross-Canada tour. You can find her book in Chapters. It is called Dying for a Home. She profiles 10 homeless people in Toronto, three or four of whom are now dead. She profiles their stories and their struggles. I just had a quick glance at the publication, which is a powerful testimonial to the people behind the numbers. These are citizens of Canada. More and more are becoming homeless every year. Even people who are holding down jobs are affected. Calgary is the most critical hot spot in the country for this situation. The economy is booming there but the housing costs are going through the roof. Even people holding down jobs are finding it difficult to meet their housing needs and literally are ending up on the streets sleeping on couches. This is a serious issue. We would say that this bill in its current form, while we feel it would be unintended, would have the effect of further marginalizing these folks.

Senator Mahovlich: It needs amending?

Mr. Rainer: It needs amending, definitely.

Senator Bryden: I have a great deal of trouble with the bill and the amendments because I believe our nation should be going in the direction of encouraging every citizen to exercise his or her vote and to make it easier for every citizen to do that. Rich and powerful people will look after themselves; middle-income people can look after themselves in that area. The people that end up disenfranchised by trying to catch the one person who might have voted twice, for whatever reason, are usually the poor. It is illegitimate for us to be putting in place a regime that therefore makes it more difficult for the poorer people to exercise their right.

Why would the committee — I assume it was the committee — have put in play a restriction on allowing persons to vouch for another person in order to give them the right to vote? In most provinces, that is not the case. In my province, if you show up at the polls and someone will vouch for you, then you vote. I do not even think you need to do that. I think if you are prepared to declare that you live there, unless there is some particular reason not to allow you to vote, you should be entitled to vote.

This restricts a person's ability to vouch for a voter to people who live in the specific riding or voting area and only for one person. What is the evil in your system now that this is designed to fix? What is there? The only thing that I can come up with is that there is always a great outcry by a political party if a group of organizers show up in a part of the city during advance polls, and on election day, and help to get the people who might not otherwise vote to the polls. It happens. One of the things that would prevent that occurring would be if you only had one opportunity and one person that could be affected.

There is no justification in restricting the movement of people during an election period to assist people to vote. To me, this is a blatant restriction on encouraging everyone to vote. I hate to subscribe motives, but it seems to be people thinking of their own interest and saying, ``I do not want those people coming into my jurisdiction and influencing the outcome of my election because, left to their own devices, the citizens of my place would probably have vote differently and I would have won,'' and so on.

I believe we need to help and to encourage the people who actively engage in the political process to make it part of their ethic to encourage everyone to exercise their right to vote, even if they might happen to vote for someone else. I do not think it is the case that someone through a pin at the wall and said, ``We will just do one and do the same district, and so on.'' I do not think that the rationale behind this is valid, but that might be its source.

We appreciate you coming here today and giving us real instances and real problems that are being faced because it very much will help us in our deliberations.

Senator Baker: I want to thank the witnesses for their excellent presentations.

Ms. Buott, perhaps you can tell the people the number of people who will be on the voters' list but who will not be able to vote because of these changes. I will use the example of a family of three or four adults on social assistance. None of these people has a driver's licence. The other pieces of identification that they have are bank account receipts, payment of certain bills, and so on. They have health cards, but in most of our provinces, the cards do not have photo identification. That is the one piece of identification you would have but there is no picture on it.

Can you imagine a typical family on social assistance? There are many; in some areas of our country, the percentage is as high as 15 per cent to 20 per cent. How will this legislation affect these people? They will be on the voters' list but will not have the picture identification. It will be a bother for them to go down, and be cross-examined, and have the Criminal Code read to them. The bill says that the Criminal Code must be read to them to make them understand that there is a six-month jail sentence for anyone who lies. This is the process. Have you thought, perhaps, about the effect this will have on the percentage of the voters who are poor, on social assistance or any similar source of income? What negative effect will that have on that percentage of those people who will now perhaps not vote after this bill is enacted?

Ms. Buott: I do not know the percentage per se but we have worked hard in our community to have people come out and vote and walked them through that whole process. To me, it will further marginalize people. When you start looking at the Criminal Code and the intimidation factor, it becomes another deterrent. That, in itself, would act as a deterrent for people coming out to vote.

From my own personal experience in not having photo identification and having to go through all of these criteria, I would say, ``That is it.'' That would further marginalize the low-income people and act as a deterrent.

Mr. Rainer: Obviously the big issue here is getting out the vote and getting people to understand they have the right to vote, which most people understand, but also the importance of voting and feeling that they actually belong to the culture and to the society and that their vote makes a difference. There may be different issues in terms of proportional representation and so on, but we will not go there today.

I do not know how much Elections Canada invests in this kind of thing, but if they do not have enough resources now, perhaps if they had more resources in the future they could specifically target low-income populations. Elections Canada could target the people where marginalization and disenfranchisement is high. They could encourage people to come out and explain the process, the rules and the procedures. We would hope that they would be as user friendly as possible, but we may look to some special investments for the electoral process to encourage marginalized groups to take part in the process. It may not be enough to just send them a voter registration card, even if it reaches them, but send them that little card with the bare bones information about the process and what they need and so forth. I do not think that is enough now and I do not think it would enough in the future. We will need a greater effort to pull out the vote of a greater percentage of the low-income people.

Senator Baker: This bill is such a huge change for poor people, is it not? It is absolutely massive when you think about it. When you gave your presentation, I was thinking about it.

If you advertise that the process is user friendly, here is all you have to do, I do not think that will do it for these people who just do not have proof of identification. This bill will cause disenfranchisement of people who are on the lower end of the income scale. This bill will attack the people on welfare, people who are unemployed and transient people, and so on.

Mr. Rainer: I do not know how one can measure it, but I am sure it would result in a decrease in participation from that population.

Senator Baker: Especially in poor areas of cities, with poor populations in ridings, would you suspect to see a decrease in the numbers of people voting?

Mr. Rainer: I would think so.

Senator Baker: Would that be because of this bill?

Ms. Buott: Yes.

The Chairman: As all witnesses have heard, every senator in this room has said to you how much they appreciate your candour and they appreciate your coming here today to give information that has been useful to the committee, particularly on the area of vouching and so on.

On behalf of the committee, I would like to say thank you very much for coming.

The committee adjourned.

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