Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 29 - Evidence - May 30, 2007
OTTAWA, Wednesday, May 30, 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 4:15 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Today, the Standing Senate Committee on Legal and Constitutional Affairs will continue its study of Bill C-31. This bill 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 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. 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.
In following the work already completed by the House of Commons Standing Committee on Procedure and House Affairs, we are here to consider the following three overarching and interrelated themes: the integrity and accuracy of the National Register of Electors; voter identification at the polls; and voter fraud.
To speak to us today I welcome back the new Chief Electoral Officer of Canada, Mr. Marc Mayrand. With a background as a university law professor and a senior public servant, Mr. Mayrand has extensive experience in strategic management and organizational change. He was Superintendent of Bankruptcy for 10 years before being appointed Chief Electoral Officer of Canada in 2007. Accompanying Mr. Mayrand from Elections Canada, we have before us Ms. Diane Davidson, Deputy Chief Electoral Officer of Canada and Chief Legal Counsel; and Mr. Rennie Molnar, Senior Director, Operations, Register and Geography.
Marc Mayrand, Chief Electoral Officer, Elections Canada: Thank you, Mr. Chairman and members of the committee. It is a pleasure for me to appear again before you to discuss the matter of Bill C-31. My remarks today will build on my testimony before the committee on May 16, 2007, a copy of which you will find attached to the documentation distributed today.
I would like to take this opportunity to clarify certain beneficial aspects of Bill C-31 that have not been discussed much to date and to answer the questions of committee members. I will also take this opportunity to propose some technical amendments to the bill in the event that the committee considers making changes.
Bill C-31 has two objectives. First, it makes some significant improvement to how the electoral process is administered. Second, the bill seeks to address a perception that the electoral system is open to abuse and that as a result tighter rules are needed for identifying electors.
Among the improvements proposed to the administration of the electoral process as a result of the recommendations of my predecessor, we should note the following. First, the bill would make it easier for Elections Canada to obtain certain information through the Canada Revenue Agency regarding citizenship and deceased electors. This would make it possible to ensure that the National Register of Electors is more accurate. These changes would permit us, among other things, to add new electors to the registry directly, in particular young people.
Second, the bill proposes various measures that would make the voting process more accessible. In ridings that cover a large territory, it would be possible to establish advance polls for a single polling division rather than several polling divisions.
Third, persons with disabilities could ask for and obtain on polling day a transfer certificate to vote at a polling station with level access and not have to do it three days in advance as is currently required.
The bill also proposes to amend the Public Service Employment Act to make a regulation to authorize the hiring of temporary staff for a period of more than 90 business days per year so that the staff is able to provide Elections Canada with the assistance needed for the preparation for, conduct of and reporting on an election.
Overall, Elections Canada believes that these measures will improve the accuracy of the National Register of Electors as well as services provided to electors.
I would like to make some clarifications with regard to adding a unique and stable identifier for electors on the list of electors. I believe this matter was raised before the committee on a previous occasion and it is important to bring some clarification to it. The primary purpose of this amendment is to make it easier for political parties and candidates to match the information on their lists with the information provided by Elections Canada. The identifier would make it possible for parties to more easily incorporate changes on their list of electors.
It is worth noting that the identifier is a unique and permanent number created and attributed randomly by Elections Canada. In fact, we already use such a number for internal purposes in managing the database of electors. Therefore, the number would be used only to manage the register and match information from the list of electors. This number is not the social insurance number or any number already created for other purposes by either private or public organizations. For that reason, I do not believe that adding the number to the list of electors would pose any additional risk to the sanctity of electors' privacy.
At this point, as I mentioned before, I would like to ask you to consider some technical amendments to the bill.
[Translation]
The first of these amendments involves the coming into force of provisions that necessitate changes to computer systems. Here I am referring to subsection 42(2) of the bill.
Bill C-31 proposes that the legislation come into force eight months after Royal Assent. However, with our current computer systems, we need ten months to complete those types of changes and run the necessary tests to make sure they are working properly. If an election were held earlier — before the ten months were up — it would be difficult to put those provisions into effect without risk, and in time for the election.
To avoid those risks, the wording of subsection 42(2) could be changed so that the proposed amendments it lists come into force ten months after Royal Assent, rather than eight months. Once again, it is a matter of allowing us to make the necessary changes to the computer system without undue risk.
I would add one provision to the list contained in subsection 42(2) — namely, paragraph (i.1) of section 28 of the bill, since we need to modify our computer systems to fully implement this new provision.
The second change I am asking you to consider pertains to paragraph 162(i.1). I refer you again to section 28 of the bill, on page 13, which deals with what are commonly referred to in the Quebec electoral system as ``bingo cards.''
That paragraph calls for the poll clerk to prepare a report from time to time on polling days on the names of all electors who have already exercised their right to vote on that day. That information facilitates the work of candidates and their teams because they try to ``get out the vote'' by easily identifying who has already voted and who has not. The concept comes from the electoral system in Quebec, where people talk about ``bingo cards,'' a report drawn up by election staff. It is a sheet containing numbers from 1 to 500. Once an elector has voted, the election worker crosses off a number on the card that corresponds to the sequence number beside the elector's name on the list of electors.
In considering implementing this provision, we have noted a few operational difficulties that it would be a good idea to remedy; this would better reflect what is done in Quebec and streamline the process. Accordingly, it is proposed that on advance polling days, information on electors who have exercised their right to vote be provided only once, at the end of the day, and not every 30 minutes, as is the case on polling day. That would be consistent with the way things are done in Quebec.
In addition, the names of electors who register on polling day, and whose names are not already on the list of electors, would not be disclosed. Adding their names by hand is an unnecessary burden, as that information would be of no use to candidates.
We recommend clearing up an ambiguity in the English wording, which says that on polling day, the ``bingo card'' should be provided only at 30-minute intervals; it should stipulate that ``bingo cards'' cannot be requested for a period of less than 30 minutes.
These minor amendments are still important. They will reduce the workload of election staff without unduly hampering voting. These amendments will adequately meet the needs of candidates seeking to identify in time their supporters who have not yet voted.
We have prepared some text for each of these two changes. We will be pleased to provide you with the copy. My colleagues and I will be happy to answer any questions you may have.
[English]
The Chairman: Could we get those copies from you now so that honourable senators could look at them as they are posing their questions to you? Thank you very much for your presentation.
I am interested in the bingo card concept that you talked about. Would that work electronically? In other words, if political parties or candidates were in their offices, which might be a mile away, would that card show up on their computer indicating who has voted, or would they have to go to the polling station and pick up a bingo card?
Mr. Mayrand: It is not in the near or immediate future, certainly. The practice would parallel the one that exists in Quebec, where paper cards are filled and every 30 minutes they are made available to representatives of candidates to pick up at their will.
The Chairman: Are you giving consideration to doing this electronically?
Mr. Mayrand: We are currently looking at renewing our old technology and we will certainly consider initiatives that will improve service to electors and candidates throughout the whole electoral process, but I do not have a timeline at this point.
Senator Baker: You said that the social insurance number will not be used as the identifier and you came to the conclusion therefore that there would not be a concern about privacy. I might just point out that, in her prepared address to the committee, the Privacy Commissioner said that if the social insurance number were to be used, that would be a real concern. She also went on to say that another identifier could be used, but the problem would still remain. You are simply disagreeing with the Privacy Commissioner in giving the opinion that privacy would not be in question. I wanted to point that out. Perhaps you might want to comment on that later.
My main question concerns an answer that you gave to Senator Rivest to a question he posed when you were last here. I do not have the English translation of what you said, but I will paraphrase the French. Senator Rivest was concerned about whether or not all of the measures in this bill were necessary and whether there was proof of the necessity of bringing in a more complicated system of voter identification. Basically, you said that there is a perception that it is relatively easy to manipulate the vote. You then said that all the complaints had been studied in this regard.
You said that you had conducted studies in some ridings. For example, recently you published a report concerning Trinity—Spadina riding, where there had been allegations of voter illegalities. You said, ``After having examined the situation of 11,000 voters who were signed up on the day of the vote, I am here to tell you today that there was only one voter who might have voted two times.'' That was a very detailed study, and other ridings have been investigated, but in each of those cases you were not able to show that there was any voter fraud as alleged.
My question is this: In Trinity—Spadina, 11,000 people registered on voting day. You investigated each one of them, and you found that in only one case could a person have voted twice. You examined all the complaints in the other areas. If this bill passes, if we bring in restrictive new legislation saying that if you do not have the proper identification you can only have one person swear somebody in to vote, what happens to the 11,000 people who were eligible to vote? You are changing the rules completely. Have you given thought to what would happen to those 11,000 voters, perhaps mostly students, after this bill is passed?
Mr. Mayrand: Yes. The study you refer to dealt with the issue of polling day registration during the last election. The current statute is very different from Quebec in that regard, but it allows for voters at the federal level to register on polling day. Those who have not been entered into the register or who have not made it to the list of electors still have the option to register on voting day. They must prove their identity and their residence in order for the registration can take place. As they do that at the polling place, they are referred to the polling station for voting.
Under Bill C-31, while the rules would change regarding polling day registration, I suspect that most of the people in Trinity—Spadina would have been able to provide two pieces of identification and been allowed to vote. Again, this study did not deal with the voting process but with the voting day registration. Therefore, there are changes between Bill C-31 and the current statute in that regard but, at the end of the day, under both statutes, voters would have to prove their identity.
Senator Baker: Would a university card with a picture on it be one piece of identification?
Mr. Mayrand: Yes.
Senator Baker: Give me an example of an additional piece of identification.
Mr. Mayrand: An attestation from the administrator of the residence where the student lives attesting to his address and residence at that place would constitute the second piece.
Senator Baker: Would an affidavit constitute identification?
Mr. Mayrand: An affidavit could constitute a piece of identification under the current regime.
Senator Baker: You said an attestation from the administrator of the place where they lived and the university. Would that person attesting to the student's identity have to be registered in the polling booth?
Mr. Mayrand: They would not have to be at the polling booth or registered. A community officer would have identified those people, and students would have been referred to those individuals who can attest to their residence.
Senator Baker: You say that most of them would undoubtedly be covered. Most of them would be 5,501 people. I am wondering about the other 5,499. Do you have any comment to make on that?
Mr. Mayrand: ``Most'' may be more than the simple majority, but that would be speculation on my part.
Senator Baker: The possibility exists that a couple of thousand people perhaps would not have been able to vote.
Mr. Mayrand: I do not have any factual evidence supporting a statement of that nature.
Senator Baker: Do you believe that some study should be done before you make a radical change in legislation such as this? Surely the object of our legislation is to facilitate voting and not to prevent it. Right now, we have complaints from people who say they cannot vote, although they live near a polling station. I am sure you hear from them. Somebody works in an office, and they are just not in that polling station. They do not end up voting at the end of the day, and there are complaints. This legislation may cause a huge number of people to be put into that category. Do you agree that this is a tightening up of the system? I know you do not want to admit that. I am just wondering.
Mr. Mayrand: My responsibility would be to administer the legislation as it is approved by this Parliament. As I mentioned during my previous appearance, Bill C-31 is certainly a major change. It shifts us from a system where we trust electors that show up at the polling station and declare their identity and allow them to vote if they are registered.
Senator Baker: You said there is no evidence of fraud. You have investigated it. Yet, the one of the main purposes of this legislation, the principle of the bill, according to the committees, is to prevent voter fraud. Yet you claim there is no voter fraud.
Mr. Mayrand: There was no evidence of voter fraud when we investigated. Again, we are dealing very much with the perception of the rules of voting.
Senator Baker: Do you think we should pass a law to satisfy perception or address the question of perception and prevent people from voting?
Mr. Mayrand: I would not go that far, of course.
Senator Baker: That is fine. I just noticed that our main witness, according to case law, is reported as appearing in 57 cases before our courts. He did a magnificent job. I can now see why.
[Translation]
Senator Nolin: I would like to thank all three of you for participating in this in-depth consideration of the bill. I would like to draw your attention to clauses 11 and 12 of the bill, which refer to section 81 of the act. My question has to do with having access, in the case of clause 11, to an apartment building or condominium building, and in the case of clause 12, to a building, land, street or any other place open without charge to members of the public. There is a lengthy description of places considered open to members of the public.
In the case of subsection 81.2 and section 81.1, an exception is stated. It would allow the tenants, managers or owners of the building in question to deny access. In the case of an apartment building, access may be denied to a building whose residents' physical or emotional well-being may be harmed as a result of permitting canvassing or campaigning referred to in that subsection, and in the case of subsection 2 of section 81.1, access to a place may be denied if campaigning in or on it would be incompatible with the function and purpose of the place or inconsistent with public safety.
As you know, sir, in an election campaign, everything happens pretty fast. The election period is pretty short. Who is going to review a decision to deny access to an elector?
Mr. Mayrand: As you can see, the act says nothing about that.
Senator Nolin: I am going to put my question a different way. What kind of instructions will you be giving election staff or returning officers?
Mr. Mayrand: If a candidate wanted to canvass the residents of the building, and the building manager denied access without a valid reason, the candidate would have to argue a right of access for the purposes of campaigning. If access was still denied, I assume the candidate would have various choices, including asking the returning officer to intervene and explain the provisions of the act to the parties to the dispute.
After hearing the property manager's explanation, the candidate would decide whether or not the matter should be taken any further. And I would expect the candidate to warn the property manager about the provisions that make it an offence to contravene the act by denying access without reasonable grounds. A number of scenarios are possible.
Senator Rivest: You know that religious communities prohibit access to places of worship.
Senator Nolin: Precisely, I would like to draw my colleagues' attention to the issue of religion. In section 81(1), when you look at the open-ended listing of the types of use to which places can be put, you will see included places for religious use. That means that Parliament intends to allow candidates to campaign in places for religious use.
We can see the scope of this amendment. Settling disputes over these exceptions will be extremely difficult, if not virtually impossible. I do not suppose anyone would want to campaign in a convent or monastery, but when push comes to shove, it could be done. Of course, those are not public places. Is that how this amendment to the act should be interpreted?
Mr. Mayrand: I would tend to interpret the section as favouring access to places open to the public generally.
Senator Nolin: Like churches?
Mr. Mayrand: I was thinking more of the church steps. I must admit that if a candidate insists on campaigning inside a religious institution, I would find it difficult to support his efforts.
Senator Nolin: So, you are saying that campaign managers would instinctively leave it up to the returning officer to make a decision.
Mr. Mayrand: Yes, and if the returning officer needs any help with the decision, he or she may consult Elections Canada.
Senator Nolin: My next question concerns clause 18(2) which refers to section 107 of the act. We see that there are two types of list of electors, one list for the deputy returning officers at the polling stations and another list distributed to candidates and political parties. Am I correct so far?
Mr. Mayrand: Yes, absolutely.
Senator Nolin: With Bill C-31, am I to understand that voter gender will already appear on the list of electors provided to election workers, but that this is not part of the information indicated on the list of electors provided to candidates?
Mr. Mayrand: Yes.
Senator Nolin: If the date of birth of electors was added to the list provided to election workers at the polling stations, this would not present any kind of administrative or computer problem. Since we are already omitting gender, the date of birth would also be omitted from the list provided to candidates and political parties. Would this cause a major problem?
Mr. Mayrand: No. It could be done.
Senator Nolin: Since there are two lists, that would be possible.
[English]
Senator Fraser: I am interested in the unique identifier, but the more I think about it, the more confused I become. Will electors know what their unique identifier is?
Mr. Mayrand: In the future, the unique identifier will appear only on the list of electors.
Senator Fraser: My difficulty is that the unique identifier will be the one thing given by Elections Canada to the candidates. I do not have a problem with a number being assigned to a person for your internal administrative purposes if that person does not know the number. I am assuming it is a number.
Mr. Mayrand: Yes.
Senator Fraser: However, I have difficulty with the fundamental notion of a number assigned to a person and given broader circulation, such as to the candidates and the candidates' workers, without the person knowing what the number is.
My question is similar to the one posed by Senator Nolin about sex and date of birth. Is it necessary to give the identifier to the candidate rather than simply keep it within Elections Canada? What is gained by giving the identifier to the candidate?
Mr. Mayrand: While the number is not shared with electors, it is available to them if they want to know their number. Again, the number has limited use.
The sole benefit of the system would be to allow political candidates to better manage their lists. Currently, each year Elections Canada issues a list of political parties who maintain their own databases. At times, we can have five to 10 John Smiths on the list. We do not provide the date of birth so it can be difficult to identify which John Smith lives at which address. Therefore, the unique identifier would allow the parties to have more accurate internal lists and avoid duplication incorrect entries on their lists. My understanding is that parties use the electoral lists each year to track people who move, et cetera, and without a unique identifier, it is difficult to manage those kinds of databases.
Senator Fraser: I am all in favour of making it comparatively easy for political parties to campaign knowledgeably and, among other things, to not harass voters by calling them repeatedly because they are listed three or four times. I understand that reasoning. At the same time, I was impressed by testimony we heard from the Privacy Commissioner and others about the prevalence of identity theft. While I doubt that an electoral number in its own right would be a massive element of identity theft, it is one more detail of plausibility.
The electronic lists could fall into the wrong hands. As we have previously established in this committee, local campaign offices want people to come in off the street to help. You want them to be involved and feel that they are part of the system. However, it becomes difficult to control these situations entirely. If someone is stealing an identity and already has other details, the addition of a voter number could be one more detail adding plausibility.
I am not certain yet whether I am opposed to this or just need to think more about it. That is why I wanted you to talk to me about it. I have little yellow lights flashing in my mind.
Mr. Mayrand: First, we are not giving new information to the recipients of the electoral lists. It would be subject to the other changes in the act. They would only be getting what is available on the electoral list. I am saying that those people already have the information. The identifier only allows them to better manage their lists, but they already have the name and address. The identifier does not allow for further connection beyond that.
Second, as I said in my introductory remarks, I fail to see how the identifier could be of any use to anybody else, because only Elections Canada uses it. There is no connection between Elections Canada and any other organization. There is no opportunity to link this to any other database. That is why I do not see a risk to privacy here. Again, this information is already available to political parties. It goes to them once a year, and more often during an electoral period. They are subject to some restrictions as to how it can be used. It simply allows them to better manage their lists and hopefully have more accurate internal lists. It also allows the parties to point out any deficiencies in our own lists, which is another benefit.
Senator Fraser: Since you raised this, let me ask you quickly: What proportion of the list that you now work with is inaccurate?
Mr. Mayrand: Our quality study showed that the list has a coverage of 92 per cent of electors. In other words, of the people who are electors and who should be on the list, 92 per cent are covered. The accuracy is at about 85 per cent. Yes, there is a margin for improvement, and we believe this piece of legislation will help improve the accuracy, especially in dealing with deceased people, who are not always removed in a timely manner.
Senator Fraser: I have a feeling that the turnout rate is higher than the lists shows because of all those inaccuracies.
Mr. Mayrand: Some of the changes in the bill will help us address that issue.
The Chairman: Honourable senators, Senator Stratton has a supplementary on the identifier question. I am obliged to tell you that we have a second panel coming up in 30 minutes, and I still have several senators on my list to ask questions.
Senator Stratton: I am getting older now, but I remember using bingo sheets 25 or 30 years ago. We had a method of voter identification. The voter would go in. I was the outside scrutineer, and the inside scrutineer would come out to me with the voters list, because they always carried a second one, and show me the names. I would check them off on a bingo sheet. Then we would go back to headquarters and they would get on the phone.
This makes life simpler for everybody. You need a voter identification. The concern now, as I understand it, is that under the current rules someone can vote two or three times by going from poll to poll to poll. The voter identification and the bingo sheets are old news. I think we all know that, or should know that.
Mr. Mayrand: As provided, the bingo sheet would have a sequenced number in the polling station. All electors listed would have a sequenced number. That would be put on the card and, as people proceeded to vote, they would be marked off.
[Translation]
Senator Joyal: Welcome, Mr. Mayrand. My first question is a follow-up to the letter that I sent to you on May 17, the day after your testimony, when I was unable to question you since I had given my time to Senator Watt.
In my letter, I expressed to you my concern about clause 21 on page 9, subsection 143(5), which states the following:
[English]
No elector shall vouch for more than one elector at an election.
[Translation]
And in French:
Il est interdit à un électeur de répondre de plus d'un électeur à une élection.
In my letter, I indicated that I felt this prohibition went beyond the reasonable limit in section 1 of the Charter since it might prevent individuals from voting because of discrimination.
I explained why I felt that, in some circumstances, a person of authority should be able to confirm another individual's address, be it a student, a shelter resident, a superintendent of an apartment building who is acquainted with the two tenants in apartment X or Y, who are spouses, and so forth.
You phoned me yesterday to respond to my concerns. To help us understand this section, and given your powers under subsection 143(2)b) to ascertain which documents are useful or acceptable for identification purposes, I would like you to give us your interpretation of this section, one that would not exceed the reasonable limits imposed by section 1 of the Charter when we seek to deprive someone of their right to vote.
Mr. Mayrand: I would like to clarify two or three points. First, section 143(5) will apply when a person is exercising their right to vote. There was already a provision similar to section 161, which had the same effect with regard to registration on voting day. So, the rule where by an elector may not vouch for more than one candidate already applied to individuals registering on election day.
My other comment concerning the vouching elector is that he or she must be present at the polling station and registered in the same polling division. That is nonetheless quite a restriction. With regard to the situations you mentioned, it would be possible to use subsection 143(2)(b) which allows the Chief Electoral Officer to authorize other pieces of identification than those set out in paragraph (a). To this effect, we have already provided the committee with a list of pieces of identification for the purposes of consultation.
Senator Joyal: Are you talking about this list?
Mr. Mayrand: Yes, and we have distributed it to the committee members, to members of the House committee as well as to representatives of the political parties so that they can forward their comments to us.
On several occasions we have talked about affidavits provided by administrators of residences, shelters or food banks. These individuals could be allowed to attest to an individual's place of residence and the affidavit could constitute one of the pieces of identification authorized under subsection (2)(b).
Obviously, electors using such pieces of identification would have to provide another, whether a driver's licence, a health card, a student card or one of the other cards listed. I think, with a combination of these tools, the spirit of the act and of the Charter of Rights and Freedoms would be respected.
Senator Joyal: If I understand correctly, what you are proposing is to add to the list that you have already provided, further to subsection 143(2)(b), and that you sent to the Chair of the House committee, Mr. Gary Goodyear, in March 2007. You are prepared to add affidavits on proof of residency or usage of a public service that would allow more than one person to have the status of vouching elector.
Mr. Mayrand: In fact, this really has nothing to do with the vouching elector. We are talking about residency affidavits in these cases. It is somewhat different for vouching electors. We are talking about document attesting to residency.
Senator Joyal: Or to a location frequented by —
Mr. Mayrand: In the case of persons with no fixed address, the provision states that usage establishes residency. Administrators of food banks or the institution in question could attest that these individuals do in fact reside at the institution's address.
Senator Joyal: Could an apartment building superintendent attest to the fact that a building's tenants do in fact reside in building X or Y on street X or Y? Most of the time they would themselves be voting in that same electoral district.
Mr. Mayrand: We would need to think about this because this broadens the notion considerably. Could a person testify that their neighbour lives —
Senator Joyal: I am talking about a building superintendent.
Mr. Mayrand: A superintendent is not a property manager, so it would it depends on the circumstances. My preference would be to have the property manager provide the affidavit.
Senator Joyal: The actual property manager or one of the representatives of the responsible property management firm?
Mr. Mayrand: Yes, we would draw up letters to that effect.
[English]
The Chairman: Before moving to the second question, four senators have not asked questions yet. Senator Milne has a supplementary to Senator Joyal's first of three questions.
Senator Joyal: He was not finished answering the first question. I know Senator Milne wants to ask something but Mr. Mayrand wants to finish his answer.
[Translation]
Mr. Mayrand: We would prepare affidavit forms that would be signed by the actual property managers.
[English]
Senator Milne: My question is on the clause that says, ``No elector shall vouch for more than one elector at an election.'' Would that mean that if a mother came in with two or three children who had reached voting age since the last election and were not on the list, she could vouch for only one of them?
Mr. Mayrand: Yes, I am afraid so.
The Chairman: That is not one of your amendments, though.
Mr. Mayrand: I am afraid I am in the same situation.
Senator Milne: What is your solution for that?
Mr. Mayrand: I draw on the experience of Quebec. Quebec allows members of the same family to vouch for each member.
Senator Milne: She would have to bring her husband and her father-in-law?
Mr. Mayrand: There is another change in the bill that makes this even more restrictive. Not only can you not vouch for more than one person, but also the person that has been vouched for cannot vouch for anyone else.
Senator Milne: I see no problem with that, but I see a problem with my first scenario of a mother coming in with twin children and being able to vouch for only one of them.
Mr. Mayrand: Yes, and her son could not vouch for his sister, according to the new regime.
The Chairman: Senator Milne had a supplementary question. We have 10 minutes left and four senators have not posed questions. Senator Joyal has two more questions.
Senator Joyal: On page 2, at clause 5, proposed section 45(1) states:
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. . . .
My concern is the interpretation of ``shall send to the member . . . a copy in electronic form. . . .'' At page 7, clause 18, subparagraph (3) states:
Each returning officer shall deliver to each candidate . . . a copy in electronic form. . . .
One clause says ``send'' and the other clause says ``deliver.'' Let me ask you a legal question: Is the electronic list, once you have delivered it or sent it, the property of the party or the candidate or does it remain the property of the Chief Electoral Officer? I will give you an example: A passport is delivered to you by the appropriate government service but you have to return it because it is not your property. The printed Canadian passport belongs to the Government of Canada. We were informed by some of your provincial colleagues that when the Chief Electoral Officer of a province delivers a copy of the electoral list, he receives the old list in return.
Since we are putting more personal data in the document in electronic form, as proposed in the bill, it seems that we should question the status of the electronic list in terms of public property. It might seem to be a legal nicety or fantasy but how a party or candidate treats that list has important consequences. If we are to take additional risks in terms of identify theft and criminal subterfuge, which certainly happens in today's world, then we must determine the status of the list. I tried to identify it in the bill as it is written but found only that the list would be sent or delivered by Elections Canada. Is there any indication that the Chief Electoral Officer would remain the owner of the list of electors?
The Chairman: Mr. Mayrand, would you consider a response?
Mr. Mayrand: There are two distinctions. Certainly, we collect all the lists used by election workers during the election. As for political parties, I am not aware that we collect those lists. I am not sure that we would claim ownership of those lists when they are sent, given that a copy of the list is sent to the various parties. However, the use and purpose are subject to restrictions as set out in the Canada Elections Act. The list should not be used for any purpose other than those set out in the act.
Senator Joyal: As we have mentioned on numerous occasions, section 56 of the act transfers the responsibility of any misuse of the list on a very light charge of up to $1,000 fine, while section 500, which governs the nature of the penalty, proposes in some cases $25,000. Would it hurt any aspect of your functioning or operation if you were to attach a higher penalty for any misuse of the electoral list and change it from $1,000 to $25,000?
Mr. Mayrand: From my perspective, certainly not, because it is an issue of trust in our electors and in our electoral system. We have to show that these matters are taken very seriously and will lead to serious consequences if the lists are mishandled. I do not see any downside to that.
The Chairman: Thank you for that. Senator Joyal, you have had 15 minutes, and I still have four senators who have had no opportunity to ask a question. We have five minutes left. With your leave, I will go on to other senators to give them an opportunity, to be fair to them.
Senator Joyal: Not at all.
The Chairman: Senator Milne, the deputy chairman, has not had an opportunity to ask questions yet.
Senator Milne: I will ask my question quickly because I want to ensure that Senator Ringuette has a chance to ask her question.
I understand that clause 6 would give you the ability to collect and retain the driver's licence numbers of electors throughout Canada; is that right?
Mr. Mayrand: Yes.
Senator Milne: Why do you need that information when you have all the other things, including date of birth? My questions are centred around identity theft and the increased likelihood of identify theft because of all this extra information being collected.
Turning to clause 9, the date of birth is not to be collected by you but it will be shared with the Chief Electoral Officers in the provincial groups throughout Canada. Have any of those provincial groups expressed concern about their ability to protect and keep confidential this information?
Mr. Mayrand: They are generally subjected to severe constraints or a framework regarding the protection of private information.
Senator Milne: Yes, but we all know how hackers can get into systems and pick up information easily. They can even get into military systems and police systems. I am very concerned about the increased likelihood of identity theft through date of birth, driver's licence and telephone numbers. What else do you need?
Mr. Mayrand: The driver's licence allows a better reconciliation of the information that comes from almost 35 sources. In order to ensure that we have the right person and the right address on the list, we need to correlate that information.
I can also point out that there has not been a breach of security.
Senator Milne: Well, not yet, because you have not collected all this information so far.
Mr. Mayrand: We have had date for birth for a long time.
Senator Milne: Date of birth or year of birth?
Mr. Mayrand: We have received information from the motor vehicle bureaus across the country for a long time. There has not been a breach at Elections Canada or at provincial electoral organizations.
Senator Milne: Yes, but now you will publish it.
Senator Fraser: They will not publish the driver's licence number.
Senator Milne: They will publish the date of birth.
Mr. Mayrand: Bill C-31 provides for that, but certainly not the driver's licence number or any other information that is not specifically mentioned in the act.
Senator Milne: Will the date of birth be out there?
Mr. Mayrand: Yes.
Senator Milne: What if we amend this bill to remove the date of birth? You will still have the driver's licence and the individual identifier number for each voter. Do you need the date of birth?
Mr. Mayrand: For our own purposes, yes. It remains the best way to identify people when they have similar names.
Again, I want to clarify that we already have the date of birth. Bill C-31 brings forward the publication of that date of birth to candidates, but we already have it internally. We use it to maintain the accuracy of the list of electors, but at this point in time we do not share it with anyone. Bill C-31 would provide for a sharing of information.
Senator Milne: Yes; precisely. I will leave it at that, although I have other questions.
The Chairman: Honourable senators, I would like to give the other three senators who have been waiting a long time an opportunity to ask their questions. Do you agree that we extend the time even though our other witnesses are here?
Hon. Senators: Agreed.
Senator Bryden: I will defer to Senator Ringuette.
Senator Ringuette: I researched our election history. In the last 140 years of our democracy, the average number of days for an election campaign is 54 days. That is a little less than two months. That is the average. Some elections have gone for 80 days and so on, but at that time transportation was not what it is today. Currently, with this bill, you are able to hire casual workers for up to 90 working days. That means 18 weeks, which translates to 4.5 months. Our history indicates that an election campaign is less than two months, and you are requesting casual employees for more than 4.5 months. Can you justify that for me?
Mr. Mayrand: The work needs to start well before the election campaign is launched. There is still a fair bit of preparatory work leading into the electoral campaign. After that, there is the closing. There are multiple requirements regarding the reporting on the electoral process afterward. That takes almost six months in itself. We do not keep all those workers for that whole period, but we need to bring the material back from the 308 districts in the country. We need to file all the reports and ensure that we can account for all the documentation that was filled in during the election period. That explains why we need time before and after the election.
Senator Ringuette: Is this 4.5 months per calendar year? Right now you have 90 working days in the current legislation, never mind this bill. You have 90 working days, which is 4.5 months, within a calendar year. For instance, if you have an election campaign in October, and it is proposed right now that we have a fixed election date at the end of the October, currently, in order to prepare for an October election, you can hire people in August or at the end of July even within that calendar year, and they can be hired in another calendar year, January, February, March and April. Is that not enough? We now have fixed election dates.
Mr. Mayrand: Yes, but we still have a minority government. That is part of our challenge. We have to keep ready to run the election whenever the call comes. I do not think anyone in the electoral process would accept us not being ready when the call comes.
Senator Ringuette: How many working days would be enough?
Mr. Mayrand: We are looking at basically six months. That does not mean we will use it all the time, but we need to have the capacity to keep workers during an electoral event for up to six months without interruption.
Senator Ringuette: You need 120 days?
Mr. Mayrand: No, closer to 165 days.
Diane R. Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel, Elections Canada: Up to 165 days.
Mr. Mayrand: You are calculating working days.
Senator Ringuette: I am calculating the amendment that I will be proposing. Thank you very much.
Senator Prud'homme: As a non-member of the committee, I wish to thank you for allowing me to ask a question here. This topic has been of great interest to me for many years. I will not abuse the time but go directly to my point. I feel so strongly about this that if there were not an amendment I would consider putting one forward at third reading or sending the bill back to make that necessary amendment. I do not expect it to carry the day.
[Translation]
I have always been fascinated with the electoral process. But the more I think about it and the more I talk about it with public servants, the more I realize that we will be creating a huge problem by listing a voter's date of birth. I want to focus solely on this aspect of the issue.
That is what bothers me the most, the potential abuses, and there will be abuse. There will be abuse when people come forward just to get the list of electors. It is not that expensive to get a huge list. I am thinking of real estate agents who have told me how incredibly useful it would be for them to have a person's date of birth. I am thinking of all those telemarketers who will be able to pinpoint who is over 65 or over 60. That is a very fragile electorate. One of a senator's main duties is to protect the most fragile people. I have been following the process from the start. Personally, I have waged 10 election campaigns and countless others for friends. I have seen a change.
[English]
As far as I am concerned, the buck stops there.
[Translation]
The date of birth should not be there. We can still live with the rest of the bill. But I would suggest to my colleagues that they amend this minor aspect of the bill, if possible, because you already have all of the other information. But date of birth, I assure you, is going to cause problems for you, and I will mention one and end it at that.
I initially objected to allowing people to register on election day, but I lost that battle. But I felt that that was not so bad, except in certain places where people do not register. They prefer to wait until election day and if the weather is nice, they will go and register, assuming that their name is not on any list. If it is not such a nice day, they do not bother registering.
We may be encouraging people not to authorize the Canada Revenue Agency to provide their name. How should my request be taken? I do not need an answer today but I really want to emphasize that the more I discuss this issue, the more I realize that we are going to be creating an awful lot of problems.
Mr. Mayrand: There are two specific points. A distinction must be drawn between the national register of electors and the list of electors. The national register of electors has to include date of birth; otherwise it would quickly become obsolete. As for the list of electors, my predecessor's original proposal was to include year of birth, not date of birth, solely on lists intended for election workers, so as to enable them to correctly identify people. Now, I think the amendments made to the original bill are based on the Quebec Election Act, which includes date of birth. I leave it in the wise hands of parliamentarians.
Senator Prud'homme: The thing is, I know there is abuse. That is precisely why I was hoping we could avoid falling into that trap. There is abuse. There are people who heavily abuse the Quebec list of electors in relation to that information.
Mr. Mayrand: I think that with the unique identifier, the problem faced by candidates from political parties will diminish substantially because they will have that identification number, and it is not the date of birth. It is a number that will make it possible to collate the list more efficiently than at present.
[English]
The Chairman: Mr. Mayrand and senior officials, on behalf of the committee I thank you very much for appearing once again on Bill C-31. We will take your testimony into consideration when we give clause-by-clause consideration to the bill. We appreciate your taking the time to prepare certain amendments. We will study them carefully and the committee will deal with them at the appropriate time.
I am delighted to welcome our next panel of witnesses representing the Public Service Commission of Canada. We have before us Ms. Maria Barrados, who has been President of the PSC since 2003-04. Prior to that she was Assistant Auditor General, at the Office of the Auditor General of Canada, where she developed a solid background in audit, evaluation and statistical analysis utilizing her background as a sociologist. Accompanying her are Senior Vice- President, Ms. Linda Gobeil, and Acting General Counsel, Ms. Marie-Claude Turgeon.
[Translation]
Ms. Maria Barrados, President, Public Service Commission of Canada: Mr. Chairman, thank you for inviting me to appear before this committee to discuss Bill C-31, an Act to amend the Canada Elections Act and the Public Service Employment Act, and more specifically, clause 40 of the bill amending subsection 22(2) of the Public Service Employment Act and clause 41, which amends subsection 50(2) of the same act.
I have with me, from the Public Service Commission of Canada, Linda Gobeil, Senior Vice-President, Policy Branch and Marie-Claude Turgeon, Acting General Counsel.
The Public Service Commission is an independent agency reporting to Parliament, mandated to safeguard the integrity of the public service staffing system and the political neutrality of the public service.
In addition, the PSC recruits qualified Canadians from across the country. The PSC has the authority to hire, or make appointments to and from the public service. This authority is delegated to deputy heads of government departments and agencies, who exercise this authority within the PSC's appointment framework, regulations and guidelines and who are held accountable by the PSC.
[English]
The PSC's authority comes from the Public Service Employment Act, 2003, which governs hiring in the federal public service. Under the act, casual employment is restricted to 90 working days in one calendar year in any particular organization. Casual employment is not subject to the provisions of the act, including merit. The proposed amendment would give the PSC the discretion to extend the period of employment of casual workers by regulation.
Clause 40 of the bill deals with casual employment. I have tabled a comparative chart that gives you the features of the kinds of employment in the federal public service. Please note that the temporary help contract does not fall within our jurisdiction.
The commission's exercise of discretion to extend the period of casual employment for a given department or agency would be based on a systemic review of the organization's request. The discretion could only be used through regulation. The requirement for a regulation before any extension of the 90 days would ensure transparency in the exercise of the commission's authority. Parliament can scrutinize what we do in a regulation through the Standing Joint Committee for the Scrutiny of Regulations, and I am always available to respond to the use of that regulation- making authority.
If the Public Service Employment Act is amended, the commission would use this discretionary authority to make a regulation only on an exceptional basis. Under the regulatory process, the PSC would have to establish criteria. We propose the following: extensions be granted only when an organization seeking to retain casual workers beyond 90 days demonstrates that the 90-day maximum impedes the organization's ability to meet its statutory obligations and that all other staffing options are not suitable.
The PSC recognizes that casual workers offer managers a quick solution to staffing a vacancy. However, casual employment is not meant to be used to replace permanent hiring. Departments and agencies must use hiring strategies in line with current and future human resource requirements. We would not be open to extensions based on a failure to do good human resources planning or short-term convenience.
Let me use the specific case of Elections Canada to illustrate. The Chief Electoral Officer determined that he needs casual workers to prepare for, conduct and report on an election for a minimum of 165 days. The timing of elections can be unpredictable. There is an immediate need and workers are required to perform specific tasks.
In response to this request, we looked in detail at the work that casual employees would do, their training and the period that they are needed. We are satisfied that the 90-day limit creates difficulties in the hiring and retaining of knowledgeable election workers and could impede the effective functioning of electoral processes. An extension through regulation in this case for these particular casual workers would allow Elections Canada to better fulfill its legislative mandate.
We do not expect this provision to be used often. There may be other exceptional situations, such as census workers at Statistics Canada or critical projects or services that rely on casual workers that must be extended for brief periods. A department could ask to retain someone with unique qualifications, perhaps a leading expert dealing with an emergency, beyond the 90-day period. Without this provision, that would not be possible.
Giving regulatory power to extend the casual period to the commission rather than to an individual organization allows for consistent and independent exercise of this authority. We would use this authority based on the comprehensive knowledge of staffing across the public service. We would ensure that any exercise of the authority would be consistent with our mandate to safeguard the integrity of the appointment system.
I would be pleased to answer any questions you may have.
The Chairman: Thank you for that concise and clear presentation. I will begin the questioning with the opposition critic, Senator Baker.
Senator Baker: I have two brief questions and then Senator Ringuette has specific questions.
In your presentation, you said, ``We propose the following,'' and then you spoke to the restrictions that you would apply under the Public Service Employment Act. Would you prefer that these guidelines be placed in law?
Ms. Barrados: No, the proposal is to give the PSC the authority to do it through regulation, and part of the requirement in the regulatory process is to lay out criteria. These would be the criteria that we would lay out to do regulations.
Senator Baker: You claim that the criteria should not be in law, so we would be leaving it totally in your hands to establish the criteria.
Ms. Barrados: My understanding of the regulatory process, and I have lawyers on either side of me who know these processes better than I do, is that it is an extension of the law. This is not strictly policy but is a legal process that extends from the law and is reviewed by a parliamentary committee.
Senator Baker: The case law of both lawyers goes back to 1988 concerning these matters. I agree with you and will not question their qualifications.
Ms. Barrados, you said, ``we looked in detail at the work that casual employees would do, their training and the period that they are needed.'' You looked at it as it relates to the existing law, I presume. Did you look at it as it relates to the requirements of the office after the passage of Bill C-31?
Ms. Barrados: We looked at it in the context of Bill C-31; we looked at past practice and at the detail of the requirements under Bill C-31.
The Chief Electoral Officer wrote to me and asked for a higher number. We had many discussions. We went through the different elements they were looking for with this kind of work, and we agreed that 165 days was a reasonable number.
Senator Baker: You agreed that 165 was a reasonable number, and you said that they asked for a higher number.
Ms. Barrados: Yes, they did.
Senator Baker: Would you care to disclose what that higher number was?
Ms. Barrados: I believe it was 185.
Senator Baker: On page 4 of your presentation, you said that without this provision, this would not be possible. I presume you agree with Senator Ringuette that if we have in law that the election takes place in October, under the existing law you could hire somebody from October to March of the following year and still be able to give them six months.
Ms. Barrados: If you have a fixed date, that removes one of the large problems. My understanding is that we still do not have fixed dates. There are still issues of referenda and, potentially, minority governments. If we had a fixed date and we knew the period, we could use the term appointment process. Without a fixed, known period, the term becomes an expensive option.
Senator Baker: Would this amendment create a new role for you and your department that does not exist in similar circumstances under the act? In other words, under this new law, would the commission be entering an uncharted area?
Ms. Barrados: No. In fact, it is quite the contrary. The structure of the act gives the commission the right to exclude organizations under its jurisdiction from provisions of the act. A very clear provision allows us to use exclusion orders so that we can exclude the application of any section of the act to organizations that fall under the Public Service Employment Act. We do that for things like non-imperative staffing. There are some operational situations where that does occur. We also have regulatory powers under the Public Service Employment Act.
When it comes to casual employees, our first thought, frankly, was that with the current structure of the legislation we had all the mechanisms we needed to exclude the application of that section of the act. Of course, we are very cautious with all these powers. We had it reviewed by the lawyers, and the lawyers checked with the Department of Justice, and they said no, it is not so clear because the provision for casual employment excludes the applications of the act. The idea was that you do not exclude merit; but, the way it is structured, it excludes all those other powers as well. The legal advice I got was, ``You had better be cautious here because it is not really clear that you have those same powers of exclusion for that specific provision for casual employment.''
Since I had the request from the Chief Electoral Officer at the same time and since Bill C-31 was going through, we decided it was best to get that kind of clarification. We are essentially seeking a clarification that allows us more flexibility for that specific provision, which technically I do not think we have although we have it for the rest of the act.
Senator Baker: You want to be allowed to go through the front door when you had perhaps permission to go through the back door.
Ms. Barrados: I believe we should never go for work-arounds. I like the analogy. Since I have been at the commission, I have wanted to use only casual employment and not do all kinds of fancy things with other exclusions to try to accomplish something. If it appears to be casual work, then it should be such, and we should not use a work- around.
Senator Bryden: I want to look at the wording in clause 40 of the bill. The wording is very broad. It extends ``the period of employment referred to in subsection 50(2) for any position or person or class of positions or persons.'' I think I understand what a position is, and I understand what a person is. What is a class of positions?
Ms. Barrados: I will ask Ms. Turgeon to respond to that.
Marie-Claude Turgeon, Acting General Counsel, Public Service Commission of Canada: A class of positions is a category of positions, or an occupational group, if you will. You could regulate with respect to the administrative support group or another group.
Senator Bryden: In your presentation, you indicated that you prefer to enlist the services by using the merit principle and all of that. However, I noticed that in the commission's 2004-05 annual report you noted that approximately 65 per cent of those hired permanently in the federal public service that year were hired from a pool of temporary workers.
You are below 50 per cent here for using the regular method. Why would we not take this to mean that what is occurring here is broadening your ability to apply temporary positions to a much larger scope than what you have had before? Certainly it appears as though it is already a much larger scope for the electoral system, and there is nothing in here that makes this apply only to Elections Canada.
Ms. Barrados: The provisions of the legislation are very clear on the type of processes, and there should be the application of merit and there should be respect for principles of access, transparency and representativeness.
Without amendment, the act excludes casual workers from all of those provisions, so merit is not applied. That means that someone hired as a casual worker does not have merit applied and they are not public servants. They do not have any of the rights of a public servant. They do not have the right to be considered in internal competitions as a public servant as a term employee would, for example. The references in the previous reports are about those people hired for short periods of time but under the Public Service Employment Act who become permanent employees. We are talking about those people who are excluded from the act. The act excluded the casual worker. Merit or representativeness does not apply. The idea is you get those people for specific purposes, for short periods of time, and they are not public servants. There is a limit of 90 days.
The rest of the act, with all of its provisions, gives the commission broad exclusion powers, so the commission can, on a case-by-case basis, exclude provisions of the act. However, because of the structure of the act, I am being advised that I cannot use those exclusion powers when dealing with that section of casual workers. That is why we have requested the extension of that exclusion power that is in the rest of the act to that specific section.
Does that broaden somewhat the mandate of the commission? Yes, it does. Would I expect it to be used very much? No, I would not. People would be rigorously scrutinized. We are suggesting that it be used only through regulation so that it is not something that would be done easily or casually. It would go through a scrutiny.
Senator Bryden: A regulation is not as permanent as legislation. It is much easier to change a regulation than it is to change the provisions of a statute.
Ms. Barrados: That is correct.
Senator Bryden: At this stage, at least as far as the electoral system is concerned, the restriction on the length of the casual employment is in the legislation. It is not in the legislation here. You indicated that there is a scrutiny of regulations committee that ensures that you do not do anything outside of that. That and 50 cents will get you a long way. I am on that committee, and we are dealing with files that are 10 or 15 years old. The lawyers for the commissions or the departments are writing back and forth. There may be no question that the regulation is ultra vires, but nevertheless they go on. That is just a rant from me.
If the way it should be done is the way it is laid out in the commission for the hiring process, how did we end up with 65 per cent of the hires in one year coming out of the temporary pool? I have been told that you get hired as a casual; you do that two or three times; then you get a temporary appointment; and then I would guess the application for the permanent position says you must have this qualification or its equivalent. The DM looks back and says, ``You have done this job for three years. Therefore, you must have the equivalent. You are hired.'' Am I close?
Ms. Barrados: Yes, you are — more than close. It is a large preoccupation I have. It does not touch this particular issue, frankly, but it is a large issue. Senator Andreychuk suggests that it touches employment equity issues because the other part of that system is that you tend to get people who are close at hand. You do not get to Senator Ringuette's concern about ensuring we get representativeness from across the country. We do not get the employment equity. I am very concerned about that. I intend to talk more about that in my annual report. However, that is not really related to this issue.
Casual employees are excluded entirely from the act so they do not get the inside track. It is the term people who are on the inside track. Casual employees, the way this is structured, are there for a specific purpose, a shorter term. There is some movement from casual into the public service. I am not saying that that does not happen, but they do have to go through that first screen. The big issue is from the term positions to the indeterminate positions.
Senator Joyal: When you say they are excluded from merit, do I take it that with all the other recruitment objectives the Public Service Commission has the responsibility to implement — such as visible minority participation, women's access to jobs of importance, and other minorities that the Public Service Commission tends to recruit normally — all workers in those categories do not have an opportunity to be casual and to get a first experience of work that could qualify them down the road?
Ms. Barrados: The legislation is set up such that all the provisions of the Public Service Employment Act do not apply to the casual worker. That is the same issue I have, that I no longer have discretion. I have discretion for all other sections of the act.
Senator Milne: My question is also supplementary to Senator Bryden's. Am I to understand from your presentation that you agree with clauses 40 and 41 of this bill? Are you comfortable with them?
Ms. Barrados: Yes, if those are the right numbers.
Senator Milne: You agree with them as a result of your negotiations with the Chief Electoral Officer that the limit of these casual workers' term would be 165 days rather than the 185 days that he wanted?
Ms. Barrados: I am suggesting that we put the 165 days in regulation and not in the statute but allow the flexibility in the legislation because, if there is a change, if there is a fixed date, we may need to shorten it down. Circumstances can change.
I agree that 165 days is a reasonable estimate of the full period of time that a casual employee could be used. I also agree that the best way to hire those workers is as casual workers.
Senator Milne: However, I see nothing in this bill, as has been pointed out clearly, that says 165 days and no more; perhaps less but no more. We know what happens with regulations. We may wake up one day 10 years from now and find out that they are still wrangling over the fact that in the regulations it actually ended up at 185 days. I see severe concerns that there is not a maximum in here.
Ms. Barrados: We have a lot of discretion on large sections of the legislation. The commission has a long history. We will be celebrating our 100th anniversary of using those discretionary powers carefully.
Senators can comment on how the regulatory process works from your end, but from my end, the process involves a lot of care. I have a commission. I must have specific discussions and decisions that are documented on the part of the commission. I have to go through an internal regulatory review, and I am fully accountable for all of those things. It is a lot more rigorous a process than it is a policy process.
I am nervous about putting another specific number down because of the issue I now have with the 90 days. In the end, that is a decision that must be made.
We have exercised carefully the flexibility we have had in the legislation, and I believe we would do so with this particular provision as well.
Senator Milne: What sort of input do you have in drawing up the regulations?
Ms. Barrados: It is entirely ours, and then we go through the regulatory review.
Senator Ringuette: Ms. Barrados, it is always a pleasure to see you. I admire you and the work you have been doing since you have been in your position.
In your presentation, you spoke extensively about organizations and about requests for extensions being granted only when organizations are seeking to retain casual employees beyond 90 days. That refers to clause 41 in this bill, which applies across the board to any department or organization.
On Thursday, May 10, Minister Van Loan was before this committee, accompanied by Matthew King, Assistant Secretary, Legislation and House Planning, and Natasha Kim, Senior Policy Advisor, Legislation and House Planning, both from the Privy Council Office, and from the Department of Justice Canada, Raymond MacCallum, Counsel, Human Rights Law Section. Given that I am not a regular member of this committee, I carefully read the transcript. Senator Milne asked Minister Van Loan and Mr. King why clauses 40 and 41 were included in Bill C-31. In response, Ms. Kim, from the Privy Council Office, said that it is because it deals with the operation of elections and the administration of it. Furthermore, Mr. King said that this amendment — clauses 40 and 41 — would give the Chief Electoral Officer the discretion required to extend that same person over a 90-day period. The actual term would be extended under the regulation. It would need to be extended in regulation partially to ensure that it is targeted and limited to election workers.
It was the Privy Council Office's position that these clauses specifically targeted election workers. Are you of the same opinion?
Ms. Barrados: The discretion is given to the Public Service Commission, and it is up to the PSC to determine whether discretion is given. I will take a bit of an issue, if I understood the comments correctly; it is not giving the discretion directly to the Chief Electoral Officer.
In terms of the targeting of election workers, it is a broader provision than specifically targeted. The first clear application that I can see is the one for the Chief Electoral Officer. I speculated on some other possible applications but I do not see any immediate specific application coming down within the next year and a half. That first application is clearly for the Chief Electoral Officer.
Senator Ringuette: Would you have to design regulations prior to that?
Ms. Barrados: Absolutely. The regulations would have to be completed for each circumstance.
Senator Joyal: Would that be for each government body?
Ms. Barrados: Yes. We have the general principles and then we would have to apply those principles to each of the bodies that would be looking for it.
Senator Nolin: The answer is yes.
Senator Milne: Other departments could use it in the future.
Ms. Barrados: No, only the commission can use it.
The Chairman: However, it is not just for the Canada Elections Act.
Ms. Barrados: The provision could be used in other circumstances but only the commission would have the authority to use it.
Senator Nolin: As well, it requires specific regulation for each request.
Ms. Barrados: Yes.
Senator Ringuette: From what we have seen in respect of delegation of authority and requests, the bill provides a large blanket to cover all agencies and departments. The last time I checked, only 23 per cent of our federal government departments and agencies had submitted a documented human resource plan as per the legislation.
On Wednesday, May 16, Mr. Gary Corbett, Vice-President of the Professional Institute of the Public Service of Canada, appeared before this committee. While opposing these two clauses, Mr. Corbett stated the position of the Professional Institute of the Public Service of Canada:
Expanding the use of casuals through Bill C-31 is a direct affront on the integrity of the entire staffing system. In other words, it is a way of circumventing the provisions of the Public Service Employment Act, in particular the hiring of employees on the basis of merit if casuals do not face the same scrutiny as permanent employees.
You have said the opposite.
Knowing that the authority to appoint a person as a casual worker has been delegated by the Public Service Commission, pursuant to subsection 15(1) of the Public Service Employment Act, to deputy heads and through them to the lowest level possible within the public service, have you any idea of the repercussions that these two new clauses would have on the entire public staffing system?
Ms. Barrados: I believe that these two clauses will have minimal impact because they pertain to an existing provision in the legislation that casual workers are exempted from the Public Service Employment Act. That is what Professional Institute of the Public Service of Canada is upset about, but the provision already exists. There is a limit in legislation now of 90 working days. Past legislation had 125 calendar days. It was misapplied and misused so the length of time did not change because one was calendar days and the other was working days.
This provision applies to those circumstances when the work of the organization could otherwise not be done. It is a compromise to their ability to deliver their mandate and that would not occur in many places. Therefore, the impact on the public service would be very little. The impact of not giving it could be greater. Then, we would have to be more creative in work-arounds and if we do not do work-arounds, it could be very expensive in that we would have to make these people public servants and that is not the intent for casual workers who do elections work or census collecting. Senator Ringuette, you will be happy to hear that the planning is much better.
Senator Ringuette: I hope so, because we have been arguing about that for a very long time.
Ms. Barrados: We are collating our numbers on the planning but they are not there so you can continue to ask. I appreciate your asking about this and it is definitely getting much better.
With respect to the comment about delegating, the circumstances of delegating are in the legislation. My role is to implement that legislation, on behalf of Parliament, as faithfully as I possibly can and report back on how it is going. That is the structure of the legislation. The right to hire casual employees is part of the delegation but with whatever restrictions we put around it that we can, which is now limited because of the way the act is structured.
The Chairman: Senator Milne has a supplementary on the point you just made.
Senator Milne: Ms. Barrados, do you foresee that Statistics Canada come the 2011 census will ask for an extension for more than 90 days for their casual workers?
Ms. Barrados: They might do that but they are already using the exclusion order. We are providing them an exclusion order under other sections of the Public Service Employment Act. Depending on how some of the other policies work, this exclusion might be better than the exclusions under which they are currently operating. The Chief Electoral Officer was operating under exclusions in the Canada Elections Act. Once I involved all the other lawyers, they concluded that it was not properly used.
Senator Ringuette: I already have a problem with the entire delegation of authority in this hiring process. On a weekly basis, I look at the job bank advertised on the website. It has become evident to me that the criteria for the jobs vary. With time, as you read them, you see the person has already been chosen and it is just a formality. Adding to that, of course, is the geographic location.
The provision of delegation of authority will now also extend to casual workers over 90 working days. We are dealing with Elections Canada and the supposed problem they have with casual workers. Why does this bill not talk about only the casual employees for Elections Canada? Why do you have to add ``any department or other organization?'' This is so broad. There is no control, and there are tons of excuses for whatever questions we ask.
Ms. Barrados: I could have gone ahead with the risks I had in the legislation. The advice I was given, with all due respect to my colleagues, was that ``There is risk here if you go ahead and use the existing exclusion powers, because they are broad for all the sections of the act.'' I did not think that was appropriate. If there is a question of risk and whether you should do it or not, I do not think you should do it, given the nature of the powers that the Public Service Commission has, which are extraordinary. I wanted to ensure we were exercising these powers properly. There were other types of exclusions and other things we could potentially do. I did not think that was proper. I was given advice that it would be best to make that an instrument similar to the rest of the act without being too specific, because once you get too specific, you run into problems of changing circumstance, because statutory change is not that easy and does not occur that quickly.
Could I make another comment in response to Senator Ringuette's favourite topic? We are pushing very hard on national area of selection.
Senator Ringuette: Yes, but 55 per cent of all federal government jobs are still not covered.
Ms. Barrados: It is better than 19 per cent, where we were. We are moving on it. I remain concerned about job posters being tailored. If I have evidence, I do something about it. I do have to have evidence, because it means I take people out of jobs.
Senator Nolin: If you go through the list of job offers weekly and you see some kind of a pattern, you would object to that, would you not? If you have evidence, would you use the authority you have to ensure that does not happen?
Ms. Barrados: If we have evidence, we do an investigation, and we can remove people from their jobs.
Senator Joyal: Could you tell us which departments and government organizations or agencies are presently using casual employees?
Ms. Barrados: I believe they all are.
Senator Joyal: They all are?
Ms. Barrados: Yes.
Senator Joyal: I thought it was limited to Statistics Canada or Elections Canada. An election happens every two or four years, and they do not need to maintain a permanent pool of employees. In Statistics Canada, there is the census, and we understand that then you suddenly need a group of people to work with you.
It seems to me that if using casual workers is an included feature of recruitment, it is because there is a problem.
Ms. Barrados: I have a concern about the use of casual workers. This is apart from the 90-day limit. The comments about Statistics Canada and Elections Canada were because of the problem with the 90-day limit.
I do have a concern with how casual workers are being used in the public service. I have asked the people who do the statistical analysis for me to look at where they are and how they are being used and what the Public Service Commission can do about it. The structure of the act does not provide us with a lot of powers on the casual worker.
The notion behind casual workers is a good one, which is that there could be a circumstance where you need somebody quickly to help with a job. It is a big organization or a big machine. There are many programs being delivered. Managers do need to be able to get somebody quickly to do a specific piece of work, but the idea is that they come in quickly and then they leave. That is the whole notion behind the flexibility of the seasonal worker.
I am concerned that it might be used in other ways now. We are looking at the issue, because the intention behind public service modernization, which is a change we have just gone through, was to try to make a more flexible piece of legislation that managers used, so that direction comes from Parliament and that is how things are to work, and you are to use this piece of legislation and not find a way to work around it. I do have somebody like Senator Ringuette who keeps after us.
Senator Joyal: I can visualize a situation where a government program that did not exist is adopted by Parliament and the delivery is fast. Let us take an energy program for example. It seems to me that beyond exceptional circumstances of that nature, if you have a system whereby casual employment is an inbred characteristic, then one way to deal with this is to resort to what we see in the private sector and have an objective of limiting the recruitment of permanent employees whereby they are subject to merit, to visible minority effort, women's minority participation, Aboriginal, handicap people and so on. That is, of course, more complex to operate than just saying we will recruit the one we know best. We know those people, and we do not have to bother with the rest of it. We will hire them for 90 days or 165 days, and 165 days is 33 weeks, and 185 days is 37 weeks, so that is two-thirds of the year, and then we tell them, ``Do not worry, we will call you back next year.''
It seems there is a pattern, as you said. That is not exactly the objective of the act and the objective that the government pursued in its employment practice. Again, I am concerned about increasing the participation of all the categories of Canadians who should have access and have greater opportunity to get the experience and a career within the public service.
Ms. Barrados: I am very much in agreement with you. I think the Clerk of the Privy Council agrees with you, as well as the advisory group to the Prime Minister.
We have a situation in the government where we have a changing demographic. I do not think it is a crisis, but it does have to be managed carefully.
Senator Joyal: The baby boomers will be retiring.
Ms. Barrados: They are retiring, and this gives tremendous opportunity for renewal, but then we have to be smart about how we do that. We do have to hire and recruit directly. We do not want over reliance on the casual route as an entry. We also do not want over reliance on the use of contractors, which I am also worrying about and trying to get my hands on. That is another way to work around it. You get a contractor, but in fact you are establishing an employer-employee relationship. You are avoiding all the other employment laws and regulations such as official languages, representativeness, et cetera.
The Chairman: You avoid medical and pension benefits.
Ms. Barrados: Yes.
Senator Joyal: What is the percentage of casual employees versus temporary employees in terms of the overall proportion?
Ms. Barrados: The permanent public service is about 87 per cent to 88 per cent. The rest, the 12 per cent, tend to be the term employees and the casual workers. I am not sure what the distinct proportions are for the terms and the casuals. You are talking about 12 per cent, which is not a bad number for an organization of that size. It seems like a reasonable kind of number. If it is used as casual in and out, like you use election workers, I do not have a problem. However, I do have a problem if it is a way to get that knowledge so that you know how to get those job descriptions written and you know how to get yourself in. That goes against the principle we are aiming for.
Senator Joyal: Which system did you develop to ensure that casual is not a disguised way for the same people to get employed regularly and to bypass the system? What kind of scale or measurement can you develop or did you develop, if you have it already, to ensure that the system is not bypassed by the fact that you are requesting from us now the possibility for a department to get 185 days of free hand with anybody and as many years recurring as they wanted?
Ms. Barrados: The request is a discretion that would be used with the same care as the other discretions in the other legislation. I do not think this would make the problem I see any different. We are dealing with a unique situation in terms of giving a broader discretion that you use with care, like the other discretions.
With respect to your question about what we do with this workforce and this dynamic that has been established in the public service, my first challenge is to understand the problem better. You are asking very good questions, and I am not providing very good answers. Where are these people? How are they coming in? What levels are we talking about? Are they administrative support or professionals? Who is coming as a casual worker? Those are some of the first questions. Are they concentrated in some departments? Then what happens to them? If you have been a casual worker, do you show up some place else in the public service? We are doing that kind of analysis right know, and we hope it will be ready for my annual report in the fall. It is cumbersome, because the only really good database we have now is the pay system, which is difficult to manoeuvre. I think some casual workers are appropriate, but not all of them are.
Then my question is what can we about it. I may have serious limits, but I certainly want to be ready for the five- year review in the legislation. If I really feel I have a crisis, I would have to come back to Parliament more quickly.
Senator Fraser: I take it this would also be covered by that five-year review?
Ms. Barrados: Yes. It is the whole legislation.
Senator Fraser: I was interested in the criteria that you suggested for use of the authority, particularly the suggestion that it must be demonstrated that the 90-day maximum impedes the organization's ability to meet its statutory obligations. When I first read that, I thought that sounded very good. I was thinking first about Elections Canada, because this bill is ostensibly about elections, and Elections Canada's statutory obligations are fairly clear. However, there are many other departments and agencies where it is much less clear. For example, National Defence and Canadian Heritage have huge areas of responsibility interpretable six ways from Sunday. Is there any set of interpretations or guidelines or anything you can offer to give us some guidance about how this phrase ``statutory obligations'' would be interpreted?
Ms. Barrados: To me, it is fairly clear. It is a task that must be carried out in a statute, like an election or a census. Any of the others would have to be a state of emergency for us to look at something. They have a responsibility in a state of emergency. Otherwise, I would say, ``You have all the human resources planning and mechanisms at your disposal; use them.'' Therefore, I do not see this being used a lot. I think it would be quite exceptional. We are pretty tight on giving all those other exclusions that we can provide in the legislation. We do not give them a lot.
Senator Fraser: It is our job, however, to try to think further down the line. You are highly respected for the integrity of your approach to the public service. Certainly everything you said here today confirms that reputation for me. Let us suppose, for the sake of argument, that a future government, the Liberal-Conservative-Democratic block, had a union-busting philosophy. Its first act was to appoint as one of your successors someone who shared that union- busting philosophy. It would be very easy to expand these regulations like mad, would it not? Casual workers are not covered by collective bargaining unions. Apart from sound tradition and your personal commitment, what protections are there?
Ms. Barrados: I will ask Ms. Gobeil to talk about the unions. I am a parliamentary appointment, so if the will of Parliament is to go in that direction and make an appointment that would go in the direction you speculate, it could easily change the legislation as well. The route is not to go by one provision. You do it through appointments. Dismissal of the commission is only by Parliament. You can dismiss the commission, and you can reappoint the commission, or you could change the statute.
I think there are a lot of other protections. Do you have a comment, Ms. Gobeil?
Linda Gobeil, Senior Vice-President, Policy Branch, Public Service Commission of Canada: You are quite right that these individuals are not part of the bargaining unit and therefore are not represented. Therefore, you can always get to that kind of abuse. In terms of the safeguards that we talked about this afternoon, it would be difficult to go to that. You have a committee that reviews regulations. I think it would be very difficult to do.
Ms. Barrados: You could change the statute, if you really wanted to. If you wanted to make a significant change in the regime, you would change the statute. You would not use one little provision in the statute.
Senator Fraser: I betray my ignorance here, but in collective agreements, are there limits on the numbers of casual workers that can be hired?
Ms. Barrados: No. Other countries have different provisions on how you hire and how many are internal and external. We do not have any of those provisions.
The other way to work around the collective agreements is that some groups are not unionized. You can do that in all kinds of ways as well.
Senator Fraser: You can make the RCMP responsible for Canadian Heritage.
Ms. Barrados: You can make them all managers.
Senator Ringuette: My question is very short. Maybe there is no answer to it. You mentioned that you were looking at a follow-up on the current casual employees being hired through the payroll mechanism. Unfortunately, you will not have a complete picture because many of these people are hired through agencies and the agencies get the contract. The contractors pay the money to the employees. Therefore, the name of the employee who is hired through a third party as a casual person is not on the payroll.
This is like a cat-and-mouse game. What I see in clauses 40 and 41 is expanding this cat-and-mouse game.
The Chairman: I would like to ask the former auditor, Ms. Barrados, if she can trace where an employee comes from by their paycheque.
Ms. Barrados: I can trace them if they get a Government of Canada paycheque. The comment about contracting through agencies is absolutely correct. I cannot trace them through that Government of Canada paycheque, but I can get to it by contracting. We are looking at that.
However, that has nothing to do with casual workers or these provisions.
Senator Nolin: It has nothing to do with clauses 40 and 41?
Ms. Barrados: No. You do not need these provisions to do that kind of work. You just do it.
Senator Baker: It is my understanding that term employees are hired for up to six months. Are term employees hired every year by government departments, in the wintertime and so on, considered full-time employees or receive the benefits of a public servant?
Ms. Barrados: A term employee is a full-time employee and, by government policy, after three years they become permanent if there has been no break in that term.
Senator Baker: That is after being employed for three years continuously?
Ms. Barrados: Yes.
Senator Baker: Right now, we will expand it to 165 working days in any one calendar year, which is eight months and five days.
Ms. Barrados: They are outside of all of that.
Senator Baker: I know. However, if they are hired in May, you get into another calendar year in December. Now you are into 16 months and 10 days possible under this new legislation. Will there be many appeals? You were an expert on appeals. You were the last line of appeal with human resources last year. It is in case law. Do you think extending it this far will create problems? Will the unions say, ``You are using us to hire a casual employee for a year and a half at a time''?
Ms. Barrados: No. The whole idea here is to use these things in exceptional circumstances, where in the past Elections Canada was using the exclusion orders of the legislation. Statistics Canada is using the exclusion powers of the legislation.
When I look at what was happening in the past, I am not so comfortable with it. I could probably do it, but I do not think it is the right thing to do. I would rather have this regularized and clear.
Senator Joyal: Is there not a way for you in the regulation to remind departments and agencies of the general principle of the hiring policy of the federal government in relation to visible minorities' participation and official languages and so on? Is it not possible for you to say, ``You are out of the system but as a government we still have ethics vis-à-vis society; we still want to give people chances to participate as government employees''?
Between doing whatever you want and not using the opportunity to hire somebody with those objectives in mind, while employees sit in offices and premises with other employees who will be subject to those criteria, it seems there is a gap or there are two ends that could be closer to one another.
Ms. Barrados: Ms. Turgeon has the final word on this. My impression is that currently I cannot, but you are giving me a few more levers if this goes through. Is that right, Ms. Turgeon?
Ms. Turgeon: You are talking about imposing conditions on casual workers. As Senator Ringuette pointed out earlier, departments do not have the authority to use casual workers unless it is delegated by the Public Service Commission. The commission can always withdraw its delegation if it sees that its authority is not being used properly.
Because section 50 dealing with casual workers mentions that all of the other provisions of the act do not apply, we will have to look at how we can impose conditions of delegation. So far we have not imposed conditions upon delegating that authority to the departments, but this is something that we can certainly explore.
We have quite a broad audit authority, which we can certainly use to ensure that the departments use those authorities for the purpose for which they were delegated.
Ms. Barrados: I want to define more clearly what that problem is. I do have these worries. I do not know how far we can go attaching conditions to delegations when they have been excluded. It may be a big issue that comes back in that five-year review.
Senator Joyal: I would ask you to look into that. As I said, there is a natural preoccupation that any government administration should have when they hire, even casual or temporary. You cannot just use that blanket to forget about everything else, while those people will sometimes be working in the same unit with other employees who are subjected to other objectives that we in Canadian society and the government try to implement as much as we can.
Senator Andreychuk: Senator Joyal, I have a response. Senator Fraser has come on as deputy chairman of the Human Rights Committee. We have been studying employment equity. It would be good if we could get people who work within the ambit of the Public Service Commission to adhere to the rules, guidelines and employment equity targets that have been set out.
I see that if we can create the culture within there, then those who come in on short-term contract should reflect them. What we put in the report, and I commend it to everyone's reading here, is that we do not need any more laws or regulations. We need a change of attitude. While I think Ms. Barrados has been trying and there have been gains, we put in our report that there should be consequences at the highest levels. If you are not taking these targets seriously within your departments, there should be consequences, perhaps through pay and bonuses.
If we can work on the nucleus of the Public Service Commission, those in casual contracts would come into a culture that is very responsive to employment equity, minorities, et cetera. While it might be nice to talk about the contractors and putting conditionality on them, let us clean up our shop first.
The Chairman: Treasury Board guidelines would also have some influence, such as the one in five and so on, which were pronounced as the policy of the Government of Canada for employees.
Senator Nolin: Just so I understand, the 90 days already exists?
Ms. Barrados: Yes.
Senator Nolin: When a person reaches the limit of 90 working days, he or she can go through another organization of the federal structure and work elsewhere. Is that how the system works?
Ms. Barrados: Yes.
[Translation]
Senator Nolin: The following is noted:
Duration may not exceed 90 working days in one calendar year in any one organization.
Ms. Turgeon: The section reads as follows:
The period of employment of a casual worker may not exceed 90 working days in one calendar year in any particular department or other organization.
Senator Nolin: Oh! Or other —
Ms. Turgeon: I interpret this specific clause as meaning that the 90-day limit applies to employment anywhere in the public service.
Senator Nolin: Perhaps the text here should be corrected because when you say ``any one organization,'' the word ``organization'' applies to the entire federal structure, if I understand you correctly.
Ms. Turgeon: Yes, what is written is ``any particular department or other.'' To my mind, the words ``or other'' mean that the working days are cumulative. The limit is 90 days.
Senator Nolin: Section 41 is much more explicit now. The bill is much clearer, but you are saying that employment could be extended by regulations. This is what I understand.
Ms. Turgeon: Yes.
Senator Nolin: In other words, depending on the level of flexibility, the criterion of 90 days in total would continue to apply to all departments within the federal structure. However, a regulatory authority, including the joint committee for the scrutiny of regulations, can always intervene to assess the situation and report.
Ms. Turgeon: This regulatory authority could take exceptional action.
Senator Nolin: Would the decision rest with you?
Ms. Turgeon: Yes, we would decide on a case-by-case basis.
[English]
Senator Fraser: Ms. Barrados, I heard your interpretation of the French text but when I look at the English text, it does not sound as clear-cut to me as you suggest. That bears some examination.
I will follow up on Senator Joyal's point about employment equity. I understand the legal difficulties but I would urge you to think, at the very least when talking about classes of employees, that one criterion used would be efforts made by the department or other organization to reach out in hiring to ensure that equity is part of what they are trying to achieve.
Ms. Barrados: I agree.
The Chairman: Ms. Barrados, on behalf of the committee, I thank you for appearing today, as you have appeared before many Senate committees. You are well known in Senate committees for your good work. We appreciate your taking the time to come here today.
Honourable senators, the next meeting of this committee is scheduled for tomorrow. As you know, the Chief Electoral Officer provided us with amendments today and I would ask you to review the documents. If honourable senators have amendments to suggest, I remind them to bring them tomorrow and have 20 copies for members of the committee and staff in order to facilitate the meeting.
The committee adjourned.