Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 29 - Evidence - May 31, 2007
OTTAWA, Thursday, May 31, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-31, to amend the Canada Elections Act and the Public Service Employment Act, met this day at 10:55 a.m. to give clause-by-clause consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, welcome to this meeting of our committee. Before reading an opening remark about clause-by-clause examination of the bill, I would like to say, that I have had a word with Senator Baker, who suggested that since there are some officials here from the Department of Justice, including the drafters, and from PCO, that it might be useful to have them at the table in the event honourable senators had questions. Do I have your agreement to invite them to the table?
Hon. Senators: Agreed.
The Chairman: I would like to invite Mr. Dan McDougall, the Director of Operations, Legislation and House Planning from PCO and Ms. Kim, Senior Policy Advisor, Legislation and House Planning from PCO. From the Department of Justice we have Mr. Raymond MacCallum, Counsel, Human Rights Law Section, and Mr. Stoltz, General Counsel of the Headquarters Legislation Section, Central Administration, Department of Justice.
Honourable senators, we are here today to commence our clause-by-clause examination of Bill C-31, to amend the Canada Elections Act and the Public Service Employment Act. Bill C-31 proposes a wide-ranging series of measures directed at enhancing the accuracy of voting information and preventing or minimizing abuses in the voting process. It seeks to improve the ways that personal information is gathered and incorporated in the National Register of Electors and ultimately made available to election officials as well as candidates and their representatives in the course of 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.
Before we proceed, honourable senators, it might be useful if I reviewed a few points about clause-by-clause study because today, as I understand it, three, four or five different sets of amendments will be coming forward. We need to know some of the procedures. I know that senators from both sides are eager to ensure that when the bill goes to the Senate for third reading, that it is in good and proper form.
If at any point a senator is not clear where we are in the process, please ask for clarification. We must do our utmost to ensure that at all times we are of the same understanding on where we are in the process or in the clause.
In terms of the mechanics of the process, I wish to remind honourable senators that when more than one amendment will be moved in a clause the ``Amendments should be proposed in the order of the lines of the clause.'' If there is a clause with 15 lines and someone wants to propose an amendment to line 14 but someone else has an amendment to line two, we do line two first. This is noted in Beauchesne's Parliamentary Rules & Forms, sixth edition, at citation 697(2). Similarly, Marleau-Montpetit's, House of Commons Procedure and Practice, at page 653, notes that amendments should be proposed following the order of the text to be amended.
Therefore, before we take up an amendment in a clause, I will verify whether any senators had intended to move an amendment earlier in that clause. If a senator says, I have an amendment to move,'' and I interrupt and say, ``Just a moment, I want to ask if there are any other senators,'' please let me have that right to ask senators in case they have an amendment to a line earlier in the clause. If senators intend to move an earlier amendment, they will be given a chance to do so first.
If a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause standing as part of the bill. On this matter, I refer senators to Beauchesne, citation 698(6), which notes, ``An amendment to delete a clause is not in order, as the proper course is to vote against the clause standing part of the bill.''
Similarly, Marleau-Montpetit, at page 656, states, ``An amendment is out of order if it simply attempts to delete a clause, since in that case all that needs to be done is to vote against the adoption of the clause in question.'' When we say shall clause so-and-so carry, you vote against it rather than moving to delete it.
I would remind honourable senators that some amendments that are moved may have consequential effects on other parts of the bill. It is very important that the committee remain consistent in its decisions and that they be consistently applied throughout the bill. I refer honourable senators to Beauchesne, which notes:
An amendment must not be inconsistent with, or contradictory to, the bill as so far agreed to by the committee, nor must it be inconsistent with a decision, which the committee has given upon a former amendment.
In the spirit of this statement, it would be very useful to this process if a senator moving an amendment identify to the committee other clauses in this bill where this amendment might or could have an effect. Otherwise, it could be very difficult for our committee to remain consistent in the decisions that we take. Our staff will, of course, endeavour to keep track of these places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of amendments to establish which ones may be consistent to others or which may be contrary.
If members have a question about process or the propriety of anything going on, please raise a point of order. The chair will then listen to arguments, decide when there has been sufficient discussion of the matter of order, and make a ruling.
As you all know, the committee, of course, is the ultimate master of its business within the bounds set forth by the Senate and a ruling of the chair can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all honourable senators wishing to speak have an opportunity to do so. For this, however, I will depend upon your cooperation, and I ask all of you to think of other senators and keep your remarks to the point and as brief as possible.
Yesterday, there were times when there were three and four senators speaking at the same time. First, it cannot be transcribed, and, second, it is not fair to the senator who has the floor. I would ask that honourable senators who want to speak to address the chair and say, Mr. Chairman, I would like to speak to this amendment. That way it can be kept in order and everyone can be heard and provided an equal and fair opportunity to be heard.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or show of hands, the cleanest route is to request a roll call vote. The clerk will do the roll call that will provide clear results. Senators are aware that any tied vote negatives the motion in question.
With that brief outline, honourable senators, with your leave, I would like to move to clause-by-clause.
Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-31, to amend the Canada Elections Act and the Public Service Employment Act?
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, there is one other thing I forgot to mention. It has been brought to my attention that there are many discrepancies in the language of this particular bill between the English and the French. There are words that have been left out in the English and in the French and there are words that mean a different thing in English and a different thing in French.
Once we come to a clause and I ask, shall clause X carry, I will say in the English and then I will turn over to the next page and ask, will it also carry in the French? If there are to be amendments in the French we would do that and I would ask for your cooperation so that we can pick up some of the differences in the language between the French and English translation. I understand there are many of them.
Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: First, clause 1 on page 1.
Honourable senators, shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Clause 1, page 1, the definitions ``list of electors'' and ``polling day'' in subsection 2(1) of the Canada Elections Act are replaced by the following:
``List of electors'' means the list showing the surname, given names, civic address and mailing address of every elector in a polling division and the identifier that is assigned to the elector by the Chief Electoral Officer.
``Polling day,'' in relation to an election, means the date fixed under paragraph 57(1.2)(c) for voting at an election.
Honourable senators, shall clause 1 carry?
[Translation]
Senator Nolin: Mr. Chairman, I would like to inform my colleagues that I intend to introduce an amendment on third reading. I am still thinking about it, I have not yet made a decision. Here is what I am thinking about. I feel, considering all the discussions we have had around this table, that it would be appropriate for the voters' list to contain just the first letter of each voter's given name or names rather than the names in full, in order to put some kind of barrier around a person's private information. I am thinking about single people, as an example, who could be in danger of any information that refers to their gender, such as the first name, being used against them. I am specifically thinking of women who live alone. Malicious people could get access illegally to the voters' list which, as we know, circulates in quite surprising quantities.
I have not come to a conclusion yet, but I am open to discussion. I wanted to let you know what I am thinking. But I will wait until third reading to move an amendment.
[English]
I am giving notice that at third reading I am still open to discussion with colleagues of the appropriateness to introduce such an amendment in light of all the discussions we have had.
The Chairman: I understand.
[Translation]
Senator Joyal: Perhaps Senator Nolin could check on how people are identified on provincial lists. If the question comes up at third reading, we would then have some points of reference.
Senator Nolin: That is the kind of information I will have at hand when I make my amendment.
[English]
Senator Fraser: I would like to speak on this clause but not on this point.
The Chairman: Does anyone else have a comment on this point? Otherwise, I will move to Senator Fraser.
Senator Fraser: You piqued my interest, Mr. Chairman, with your reference to variations between the English and the French. This is miniscule but —
[Translation]
« jour de scrutin » Le jour fixé pour la tenue du scrutin dans le cadre de l'alinéa 57(1.2). . .
We need to open another parenthesis there.
[English]
Do we have to move an amendment to that effect?
The Chairman: Yes we do.
Francois La Fontaine, General Counsel, Headquarters Legislation Section (Central Administration), Department of Justice Canada: I am with the legislation section of the Department of Justice. I want to alert senators to the fact that conventions are different in French and English. We must remember that all the time. This is quite a small detail but in French there is only one parenthesis.
If you look at paragraphs in English, there are two parentheses so the letter is between two, but only one in French. Do not ask me why, but that is the way it is done.
Senator Joyal: On that same point, Senator Fraser, I have the text of clause 57(1.2). In the French, all the paragraphs, (a), (b), (c), and (d) are labelled the way that it is drafted in the French version while on the English side each italicized letter has both parentheses.
Senator Fraser: I have learned something.
The Chairman: Senator Fraser, do you want to withdraw your amendment?
Senator Fraser: I will. I did not move it. I shall not move it.
Senator Milne: Are you telling us then, sir, that in the French version it should be 57(1.20)c) or should it be two end brackets?
Mr. La Fontaine: It should be as it is. The subsection is between two brackets both in French and in English, but for paragraphs with the letter, the difference between the English and French is that French uses only one parenthesis at the end.
Senator Milne: You use two end brackets at the end?
Senator Nolin: On a point of clarification, do we have to introduce amendments also for technical amendments?
The Chairman: Yes, we do.
Senator Nolin: We have to.
The Chairman: You can do it either here, at third reading or ask the law clerk to review them. There are several ways of doing it.
Senator Nolin: But when the law clerk is reviewing them, nevertheless we need to introduce an amendment to the text. How is it done?
The Chairman: The same way that all other amendments are done. It will be changed.
Senator Andreychuk: Certainly the practice has been here that if it is a technical amendment, we raise it. The drafters are here and they proceed with it.
Senator Stratton: That is correct.
Senator Andreychuk: Only if we have to make a substantive change when we see clearly that what it says in French is different from what it says in English do we move for amendments.
The Chairman: An amendment is an amendment. If it is a change, then it is an amendment.
Senator Milne: Some can be parchment errors.
Senator Andreychuk: Yes, thank you.
The Chairman: I would like to go back to clause 1 at page 1. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. In English and French?
Hon. Senators: Agreed.
The Chairman: Carried. Clause 2 at page 2, subsection 17(1) of the act is replaced by the following —
Senator Stratton: Is there a reason to read out every clause line-by-line and word by word?
Senator Baker: Not if you suggest otherwise.
Senator Stratton: I suggest we dispense with that.
Hon. Senators: Agreed.
The Chairman: Honourable senators, shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: In English and in French?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
Senator Stratton: In English and in French?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 4 carry in English and in French?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 5 carry in English and in French?
Some Hon. Senators: No.
Senator Milne: Senator Baker will speak to this.
Senator Baker: I move that line 36 on page 2, under proposed subsection 45(2) of the Elections Act, be amended by striking out the words ``date of birth.''
Senator Milne: I believe there is another line, 44 and 8.
Senator Andreychuk: It is line 37.
Senator Milne: Is there another spot?
Senator Fraser: Not in this clause.
Senator Stratton: Senator Baker, this deletion is in respect of limiting the publication of the date of birth. It would not impact the Chief Electoral Officer's ability to have that information and use it confidentially.
Senator Baker: You are absolutely correct. Nothing that we do to this proposed legislation will influence the fact that the Chief Electoral Officer not only has the date of birth but also every other bit of information that can be collected about an elector.
The Chairman: Senator Baker, may I ask a question? Does your proposed amendment strike out only three words, ``date of birth,'' or is there more to it?
Senator Baker: No, Mr. Chairman, it is only ``date of birth.'' I realize that I had signified previously my concern about the identifier but I was convinced otherwise about half an hour ago. Any suggestion I made to remove the identifier has been changed by Senator Joyal.
Senator Milne: Senator Joyal?
Senator Baker: Yes, and by Senator Milne, Senator Fraser and Senator Bryden.
Senator Stratton: I would like the officials to comment on this. Does the proposed amendment impact negatively on what they are trying to achieve with the bill? Is this acceptable or is there a particular a reason why ``date of birth'' should not be amended?
Dan McDougall, Director of Operations, Legislation and House Planning, Privy Council Office: The original bill as introduced would have had the date of birth information distributed to polling officials to allow them to confirm more effectively the identity of the people presenting themselves at the polling station. That was the intent in the original drafting of the bill.
There was an amendment in committee that expanded the distribution of that information on lists that were distributed to parties. Part of that was so parties would be able to keep their records more accurately. There are other purposes for which the lists are used legitimately under the provisions of the existing Canada Elections Act for communications with electors. As I understand it, part of the intent of the broader distribution of such information was to facilitate that communication with electors for purposes other than just voting. There are multiple purposes for which the list of electors is used legitimately under the act as it stands.
Senator Milne: The intent is to make certain that this information cannot be used to steal a person's identity. This is of grave concern if crooks have a person's name, phone number, address and date of birth. How long would it take to get the rest of that person's information? We are very concerned about the date of birth information.
Senator Baker: While recognizing that the date of birth, as pointed out by the expert witness, is used for various purposes, in clause 5, we are only dealing with members and registered political parties and the contents of the lists distributed to those parties.
I understand and I agree with you on the multiple purposes of the date of birth but it does not apply to the proposed subsection under discussion.
Senator Fraser: I would like to recall for the record that serious concerns were expressed about including the date of birth in these electoral lists by the Privacy Commissioner and by other witnesses or submissions, who were concerned as well about identity theft. Senators have not dreamed this up but are responding to expert testimony.
The Chairman: A number of us received numerous emails on this from across Canada as well.
Senator Andreychuk: I want to confirm that this was inserted at the House stage and was not part of the first bill introduced by the government. Is that correct?
Mr. McDougall: That is correct. The change was introduced at committee.
Senator Andreychuk: All right. For the record, I do not recall who introduced the motion.
Senator Baker: Yes, you do.
Senator Andreychuk: What was the result?
Senator Nolin: I do not think that concerns our purpose.
Senator Andreychuk: I would like an answer. I would sincerely like an answer to my question.
[Translation]
Senator Rivest: Under this amendment, the list to be distributed to parties and to members of Parliament would not have the date of birth, but could the date of birth appear on other lists?
Senator Nolin: Yes.
Mr. McDougall: Yes.
Senator Rivest: Would it not cause significant administrative problems to have two types of lists, one with the date of birth and the other without?
Mr. McDougall: Two types of lists are available already.
Senator Rivest: That is not a problem for you.
Mr. McDougall: Correct.
[English]
The Chairman: Senator Andreychuk asked a question about the history and I am sorry I did not provide an opportunity for you to respond. Please do so.
Mr. McDougall: As I recall, the amendment was introduced in the Standing Committee on Procedure and House Affairs. It was introduced on clause-by-clause consideration. It was a Bloc amendment and it was carried in committee.
Senator Baker: I think it was also supported by the Liberals.
Mr. McDougall: As I recall, yes.
The Chairman: Honourable senators, we have an amendment from Senator Baker that the words ``date of birth'' be deleted in proposed subsection 45(2). I know that Senator Milne asked earlier about clause 7 and clause 13 where those words also appear. We will return to that when we come to those clauses, Senator Milne.
Senator Stratton: While we may deal with this issue right now, I want to put on record that I would perhaps like to examine this further at third reading. With respect to the basis of year and day and month of birth, I would agree, but there may be a reason to maintain a part of that, such as the year of birth. I put that on the record for us to think about between now and third reading.
The Chairman: Could I ask the officials if they would like to comment on that possible consideration at third reading? It is hypothetical.
Mr. McDougall: Perhaps I can provide a bit of history on this issue that might be helpful for senators.
The Chairman: Please do.
Senator Baker: Within the meaning, though, of clause 5.
The Chairman: Yes.
Mr. McDougall: I guess the whole issue surrounding year and date of birth, wherever it appears in the text in clause 5 and broader, it is a similar sort of issue in terms of the concerns with respect to privacy, although it has broader affects depending on whom is receiving the lists.
The issue arose from a report that was provided to the Standing Committee on Procedure and House Affairs following the thirty-eighth general election. The CEO recommended that the year of birth be added in the lists that were distributed to poll workers in order to better confirm the identity of people wishing to vote.
When the committee studied his report, the committee accepted his recommendation on year of birth but went even further. In their report, they recommended that the date of birth be included in the information provided to poll workers.
That was included in their study of the CEO's report. The government responded to that report, accepting the recommendation of the Standing Committee on Procedure and House Affairs and subsequently included that provision as they recommended it in Bill C-31 as introduced in the House.
Senator Milne: I have a point of order. Mr. Chairman, if we will be having long descriptive answers to questions from the officials here at the table as we are going through clause-by-clause consideration, we will never complete this today.
The Chairman: I agree with that, but honourable senators have posed questions, and I am giving the witnesses an opportunity to answer them.
Senator Milne: They are not witnesses. They are just here to help us if we need it.
Senator Stratton: This is the issue.
The Chairman: Senator Bryden?
Senator Bryden: That is my concern. I do not mind doing it next Wednesday, if we need to continue.
The Chairman: The chairman has heard the representation. Honourable senators, clause 5 has been amended by Senator Baker indicating the words ``date of birth'' be deleted. Shall clause 5 carry as amended?
Some Hon. Senators: Agreed.
Senator Stratton: On division, based on the description that I gave earlier.
The Chairman: Clause 5 carries, as amended, on division.
Senator Stratton: Yes.
The Chairman: In English and in French?
Hon. Senators: Agreed.
The Chairman: Carried, on division. Shall clause 6 carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 7 carry?
Senator Milne: No.
Senator Baker: Mr. Chairman, I want to point out that ``date of birth'' appears in this section. However, the ``date of birth'' referenced in this section applies, as I understand it, only to the information that is exchanged between the Minister of National Revenue and the Chief Electoral Officer via income tax returns, which are voluntarily completed by the tax filer. Therefore, it would not apply to the lists that are distributed to party workers.
The Chairman: Shall clause 7 carry in English?
Senator Milne: No, please hold on a minute. I am just looking at the French version where I see the reference only once. It appears twice in clause 7, proposed section 46.2 in English, and I am looking to the French senators.
Senator Nolin: We agree with it.
Senator Milne: It is okay?
Senator Nolin: Yes.
Senator Milne: All right.
The Chairman: Shall clause 7 carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 8 carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 9 carry in both official languages?
Senator Milne: Senator Baker?
Senator Baker: No. This was my original intent prior to being convinced otherwise.
The Chairman: Honourable senators, shall clause 9 carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 10(1) carry?
Some Hon. Senators: Agreed.
Senator Joyal: I would like to inform honourable senators that I am considering introducing at third reading the consequential change in relation to sub-paragraph (ii), which deals with section 56 of the Canada Elections Act, by increasing the penalty of $1,000 per offence to $25,000.
The amendment would amend section 500 of the Elections Act, and that section has a various number of paragraphs. Paragraph 56(2)(e) is covered by section 500(1) of the Elections Act for $1,000. If we want to increase that penalty to $25,000, it would then appear under section 500(4).
In order to ensure that the amendment would be properly drafted, I want to inform you, as did my colleague Senator Nolin, that I am considering introducing such an amendment at third reading.
The Chairman: Thank you very much. Honourable senators, shall clause 10(1) carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Honourable senators, shall clause 10(2) carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 11(1) carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 11(2) carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 12 carry in both official languages?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 13 carry in both official languages?
Senator Baker: I would like to propose a consequential amendment, which involves the distribution of the preliminary lists of electors in electronic form to each registered and eligible party. The amendment would be that at lines 14 and 15, the words ``address and date of birth'' be struck and replaced with ``and address.''
The Chairman: Name and address. Therefore, it would read ``name and address?''
Senator Baker: Yes, of each elector.
Senator Milne: In French, should it not be ``address'' singular?
Senator Nolin: No.
Senator Milne: Plural?
Senator Joyal: Yes, it is plural. In the address, you have many items of information. You have the numbers and the streets.
Senator Milne: I am learning a lot about French today.
The Chairman: Is there any further discussion on the amendment to delete the words ``address and date of birth'' and just have the words ``name and address?''
Senator Stratton: In my same explanation as I gave earlier, to consider the year of birth, I will vote on division on this clause.
The Chairman: Shall clause 13 carry, as amended, in both languages?
Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 14(1) carry in both languages?
Hon. Senators: Agreed.
The Chairman: Shall clause 14(2) carry in both languages?
Hon. Senators: Agreed.
The Chairman: Shall clause 15 carry in both languages?
Hon. Senators: Agreed.
The Chairman: Shall clause 16 carry in both languages?
Hon. Senators: Agreed.
The Chairman: Shall clause 17 carry in both languages?
Hon. Senators: Agreed.
The Chairman: Shall clause 18 carry in both languages?
Senator Baker: I have two consequential amendments that do exactly the same thing. This section deals with the transmittal of the list of electors — and it specifically spells out the date of birth — but the transmittal will not only be done to the deputy returning officer, but also to the candidates. Therefore, my amendments would be on page 7 at lines 29 and 30, to strike the words ``and date of birth'', and at lines 34 and 35, to strike the words ``that indicates each elector's date of birth.''
The Chairman: Is there any discussion? Senator Nolin?
Senator Nolin: Senator Baker, in subsection 107(2) of the Canada Elections Act, the transmittal of the list is to the officers who are working at the table — the scrutineers and the clerk. That is why the sex of the elector is referred to in this paragraph.
Senator Baker: Yes.
Senator Nolin: The transmittal in subsection 107(3) is to the candidates, which is different.
Senator Baker: Yes.
Senator Nolin: I think it would be appropriate to maintain the full date of birth on the list that we are giving to the employees of Elections Canada, the returning officer, in the first paragraph. I agree with the third paragraph, but not the second paragraph. That is why I am asking you the question.
Senator Baker: My answer to you is that the same list follows sections 2 and 3 of subsections 107(2) and (3) of the Canada Elections Act, section 2 spells out the list and how it will be transferred to the deputy returning officer, including the date of birth. Then it says that each returning officer shall deliver to each candidate a copy of the electronic form of the version of the electors. If you do not say that will exclude the elector's date of birth, then by reference from subsection 107(2), in order to accept your version, we would have to have an amendment to subsection 107(3) that says that will not include the elector's date of birth.
Senator Nolin: That is it. Let us say that if everyone agrees on the idea that I am proposing, we must give the employees of Elections Canada all the tools to make sure that we have the right Lorna Milne at the table when she wants to cast her vote. We should give all of information that we can have, through all the processes that we have agreed to, to the workers of Elections Canada; I think that is what we want. What we do not want is to have that information circulated outside that table.
Senator Fraser: If I may, I was going to make a similar suggestion. Since we would have the deputy returning officer's list, including both sex and date of birth, I would suggest that our change to subsection 107(3) should say, ``. . . official lists of electors that does not indicate the elector's sex and date of birth.''
The Chairman: This is more revisionism; because I should tell you that in first reading in the House of Commons, this is the way subsection 107(3) read, ``. . . form a version of the revised list of electors and the official lists of electors that does not indicate an elector's date of birth.
Senator Fraser: Or sex.
The Chairman: That was the original version.
[Translation]
Senator Nolin: Mr. Chairman, allow me to say that we have thought about this very carefully. This is why we are making the proposal.
[English]
Senator Baker: So the amendment, if I understand Senator Nolin correctly, would be to reinstate what was there originally, but also include the elector's sex.
Senator Nolin: They do not need to know that.
Senator Baker: The amendment would then be, on line 34 and 35, ``. . . that does not indicate each elector's sex and date of birth.''
Senator Milne: Then leave ``and date of birth'' in subsection 107(2).
Senator Joyal: I would not say ``sex or''; I would say ``sex and.''
Senator Fraser: I would say ``sex or,'' because you might argue that if we have said ``sex and,'' they could get away with listing one but not the other.
Senator Baker: The reason why Senator Joyal is suggesting ``sex and'' is because ``and'' is in the previous section and he is suggesting you conform to that.
Senator Fraser: I understand that, but I would still suggest ``or.''
The Chairman: Senator Baker, are you now going to still insist on deleting ``and date of birth'' on line 6(2)?
Senator Baker: Yes, on line 29 — line 29 and 30; we eliminate that.
Senator Nolin: I do not get it. Do you want to touch paragraph 2? You leave that out? Okay.
Senator Baker: We are eliminating ``. . . date of birth'' — no, we are not doing that at all. Senator Nolin has completely confused me.
Senator Nolin: I am watching you.
The Chairman: Senator Baker, in order to keep the record clear, since you are not going to proceed with that proposed amendment, would you like to withdraw it?
Senator Baker: You are not supposed to be able to withdraw your own motion, but I so withdraw my own motion.
The Chairman: Senator Nolin, do you want to move your amendment?
Senator Nolin: No, I think it is quite in order for Senator Baker, who is already moving something on subsection 107(3).
Senator Baker: On lines 34 and 35 of page 7 of Bill C-31, the following words be struck that indicates each elector's date of birth and replaced with ``. . . that does not indicate each elector's sex or date of birth.''
Senator Joyal: In deference to Senator Fraser, can we ask the drafter if, with ``and/or,'' the word ``and'' would be preferable to the word ``or.''
Doug Stoltz, General Counsel, Department of Justice: With the negative, ``or'' is normally used.
The Chairman: In the original text it was ``an elector'' not ``each elector.''
Senator Baker: ``And the official list of electors,'' the way it reads, ``that does not indicate the elector's,'' which was the original version. ``An elector's'' is even better, I think; ``an elector's sex or date of birth.''
Senator Andreychuk: I want a clarification on what Senator Joyal is indicating he wants to do in raising a penalty from $1,000 to $25,000.
The Chairman: That is not in this section at all.
Senator Andreychuk: I appreciate that, but if there were an improper transmittal, would your contemplated amendment capture it?
Senator Joyal: It is under section 56, which was earlier on.
Senator Andreychuk: I want to know whether, when you are preparing a list and you handle sex or date of birth, you will be trapped under what you are trying to do, from $1,000 to $25,000.
Senator Joyal: Absolutely. It will be part of a misuse of the list. If someone used the date of birth contrary to the purpose for which the information was given, the person is using the list illegally.
The Chairman: Senator Baker has made a motion. All in favour of that motion?
Some Hon. Senators: Agreed.
The Chairman: Would you like me to read the motion again? Okay, it is on record.
Senator Stratton: On division, please.
The Chairman: Shall clause 18 carry as amended in both languages on division? Agreed?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 19 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 20 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 21 carry in both languages as agreed?
Senator Milne: Senator Jaffer has an amendment to clause 21 which amends section 143 to 145 of the Canada Elections Act. There is a little bit of confusion on our part, so we will leave it to her to introduce this amendment after some further discussion at third reading. I am just giving you advance notice on this one.
The Chairman: Shall clause 21 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 22 carry in both languages? Agreed?
Senator Baker: Mr. Chairman, perhaps the drafters of this legislation could help me. I have read this several times, and I think I understand what you think you want to transmit with clause 22 with proposes to replace sections 146 to 148 of the Canada Elections Act.
Mr. Chairman, I am sure you would agree, as an expert in law, as everyone recognizes, the wording is very cumbersome and perhaps the wording does not do anything.
Section 146 states:
If a name and address in the list of electors corresponds so closely — whatever that means, with the name and address of a person who demands a ballot as to suggest that it is intended to refer to that person, the person shall not be allowed to vote unless he or she takes the prescribed oath.
Was there not any other way of describing exactly what you mean instead of using the words ``corresponds so closely,'' or is there a precedent for this wording?
Mr. Stoltz: Senator, unfortunately, we are not the drafters of this particular bill. The drafters of Bill C-31 are presently occupied in another urgent place.
Senator Milne: Confusing someone else?
Mr. Stoltz: As I read it, I think I understand what it is getting at.
Senator Baker: You think.
The Chairman: I think we often understand what it is getting at. The question is, can it be clearer and the answer is clearly, yes, it could be a great deal clearer.
Mr. Stoltz: Is it that there is more than one person being mentioned here?
Senator Baker: ``So closely.'' Is there any precedent for that? I have never read that as a phrase to be used to describe ``in close proximity to upon analysis.''
That is what they intend to mean by this, but it corresponds so closely to the name and address to suggest that it is intended to refer to the person.
Mr. Stoltz: It was just pointed out to me this is the language in the current version of section 146.
Senator Baker: That dates back to 1900.
Mr. McDougall: No, I was going to point out that it is really the responsibility of the existing text of the Elections Act to provide more clarity because the original language was more cumbersome.
Senator Fraser: I, not being a lawyer, was not perturbed by the words ``so closely'' but I thought the very peculiar form of this paragraph would have been greatly improved if the last two lines, instead of saying ``. . . the person shall not be allowed to vote unless he or she takes the prescribed oath'' had simply said ``. . . the person shall be allowed to vote if he or she takes the prescribed oath.''
I do not know whether members would care enough to want to make that change. I wish the drafters had done it initially.
Mr. Stoltz: If you are making an exception from a prohibition you would say ``she shall be allowed,'' but if you are making the opposite —
Senator Joyal: An affirmation of capacity.
Senator Fraser: It is very peculiar.
The Chairman: Honourable senators, shall clause 22 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 23 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 24 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 25 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 26 carry in both languages.
Hon. Senators: Agreed.
The Chairman: Shall clause 27 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 28 carry in both languages? Agreed?
Senator Baker: No.
Senator Nolin: Has someone introduced the proposed amendments.
The Chairman: So far, no one has indicated that they are going to, but this is one of the clauses where the Chief Electoral Officer yesterday tabled some amendments. Will someone propose them? Senator Nolin, please?
Senator Nolin: I will do it in French.
Senator Baker: Explain it after.
[Translation]
I will start by introducing it and then I will answer your questions. If I get lost, I will ask Senator Joyal to finish my thoughts.
I move that lines 11 to 16 on page 13 of the French version be replaced, so that the bill now reads as follows:
i.1) Sur demande et à intervalles minimaux de 30 minutes fournit aux représentants des candidats sur le formulaire prescrit et selon les directives du Directeur général des élections, l'identité des électeurs ayant exercé leur droit de vote le jour du scrutin à l'exclusion de celle des électeurs s'étant inscrits le jour même;
[English]
The idea is to make available, to political organizations, the names of those who have voted, but not the names of those who have registered the same day, because they are not on any list.
Senator Fraser: They have already voted.
Senator Nolin: They are negotiated numbers.
The Chairman: Honourable senators, are you in agreement with the amendment?
Hon. Senators: Agreed.
The Chairman: Honourable senators, shall clause 28 carry in English and French, as amended?
Hon. Senators: Agreed.
Senator Nolin: I have another one. They are all in clause 28.
The Chairman: Let us do all of clause 28.
[Translation]
I have an additional paragraph:
i.2) Sur demande après la fermeture du bureau de vote par anticipation fournit aux représentants des candidats sur le formulaire prescrit et selon les directives du Directeur général des élections, l'identité des électeurs ayant exercé leur droit de vote ce jour-là à l'exclusion de celle des électeurs s'étant inscrits le jour même.
[English]
The rationale for it is for electors who have voted during the day.
The Chairman: It is about an amendment in English.
Senator Milne: Will this cause a problem now that we are providing the birthdate and sex to the officers in the poll, the list that DROs are using in the poll, and they will have to provide this to the candidate's representative on a different list?
Senator Nolin: No, there will be a specific form created by the CEO. It will be a form with numbers on it. If elector number two has voted, the number two will be circled.
Senator Baker: Does Senator Nolin have an additional amendment as well? The Chief Electoral Officer spoke about some difference in the English and the French.
Senator Andreychuk: It was supposed to have been considered overnight.
The Chairman: When the Chief Electoral Officer tabled the proposed amendments, there was one that he wanted corrected in English, and Senator Nolin has moved the French version. Someone should move the English version that corrects the English.
[Translation]
Senator Nolin: That will let me practice the language of Shakespeare.
[English]
The amendment to sub-paragraph (i.1):
On request, and at intervals of no less than 30 minutes, is to provide to a candidate's representative, on the prescribed form, and as directed by the Chief Electoral Officer, the identity of every elector who has exercised his or her right to vote on polling day, excluding that of electors who registered on that day.
The Chairman: Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Next, Senator Nolin.
Senator Nolin: Sub-paragraph (i.2):
On request, after the close of the advanced polling station, provide to a candidate's representative, on the prescribed form and as directed by the Chief Electoral Officer, the identity of every elector who has exercised his or her right to vote on that day excluding that of electors who registered on that day; and. . .
The Chairman: Is there agreement, honourable senators?
Hon. Senators: Agreed.
The Chairman: Shall clause 28 carry as amended? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 29 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 30 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 31 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 32 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 33 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 34 carry in both languages? Agreed?
Hon. Senators: Agreed.
Senator Stratton: We did it.
The Chairman: Shall clause 34 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 35 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 36 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 37 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 38 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 39 carry in both languages? Agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 40 carry in both languages?
Hon. Senators: Agreed.
Senator Ringuette: As you indicated at the start of this meeting, Mr. Chairman, if we want to delete an entire clause we just vote it down, we do not need to put forth amendments.
The Chairman: That is correct.
Senator Ringuette: I hope my colleagues will delete clause 40.
Senator Fraser: I want to explain my vote before I cast it, if I may. This bill is about elections, and indeed when the minister appeared before us I certainly took from his testimony that this clause was designed to assist Elections Canada. Elections Canada has explained to us that it needs this clause; I accept that.
I have trouble, however, with tacking on to a bill about elections a reasonably significant change to the whole public service employment provisions. Therefore, I shall vote to delete clauses 40 and 41 now, but I would like to see at third reading a partial reinstatement — that is, to bring them back — for Elections Canada.
It seems to me appropriate — if it is desirable to have this change for the broader public service — that that be considered in a separate bill.
The Chairman: Thank you for that.
Senator Nolin: Yesterday, we heard the testimony and I presume you have been informed of what we heard. There seems to be a contradiction. I am under the impression that the President of the Public Service Commission of Canada is asking for those amendments because they will give her more authority to supervise the exception on casual employment.
The Chairman: She said that clearly, while she was here yesterday.
Senator Nolin: Senator Ringuette and I had a little discussion just before entering this committee meeting. There seems to be a contradiction between what Senator Ringuette understands and what I understand.
Maybe you can comment on what is the position of the Privy Council Office.
Natasha Kim, Senior Policy Advisor, Legislation and House Planning, Privy Council Office: The genesis of the bill was obviously the report of the Standing Committee on Procedure and House Affairs. That recommendation was specifically aimed at election workers and that was clearly what the government was motivated to support. However, in discussions with the Public Service Commission and looking at their statute and how they operate in terms of the regulatory process, they felt this was the best way to address the issue. The Public Service Commission feels that addressing this issue in this way provides a comprehensive response to the issue of casual workers for Elections Canada, and for other exceptional circumstances such as census workers or other exceptional circumstances that may come through the regulatory process.
Senator Ringuette: I would like to read for the benefit of my colleagues the current powers that the president has under the Public Service Employment Act.
The Chairman: You are referring to the President of the Public Service Commission, not Canada Elections.
Senator Ringuette: No, I am not referring to Canada Elections. This refers to clauses 40 and 41 proposed in this new bill.
Currently in the Public Service Employment Act, section 20 reads as follows:
(1) Where the Commission decides that it is neither practicable nor in the best interests of the public service to apply this Act or any of its provisions to any position or person or class of positions or persons, the Commission may, with the approval of the Governor in Council, exclude that position, person or class from the application of this Act or those provisions.
This refers to the discussion regarding 90 days for casual employees.
It goes on to state:
(2) The Commission shall consult the employer in respect of an exclusion for any provision of this Act whose application is not within the Commissioner's jurisdiction.
(3) The Commission may, with the approval of the Governor in Council, re-apply any of the provisions of this Act to any position or person, or class of positions or persons, excluded pursuant to subsection (1).
Then section 21 of the Regulations of Governor in Council states:
The Governor in Council may, on the recommendation of the Commission, make regulations prescribing how any position or person, or class of positions or persons, excluded under section 20 from the application of this Act or any of its provisions is to be dealt with.
My point is this. Currently, the president has the authority to apply to the Governor-in-Council. Therefore, there needs to be major justification to expand a person or a position's employment beyond the 90 days. The president already has the power, if needed. The question here is that justification must be made and the Governor-in-Council must approve.
Yesterday the President, Ms. Barrados, indicated that this is the way they are doing it at present. We did not ask how often this special privilege was granted.
The Chairman: She said that the privilege is granted infrequently.
Senator Milne: She said to every department, though.
Senator Ringuette: I wish to reiterate my concerns.
Ms. Barrados already has the power in emergency cases or special cases with regard to not only Elections Canada but also to any other agency or government unit, as long as there is justification and it is approved by the Governor-in- Council. I think that tightens it more than by doing it by regulations for all the departments.
I, therefore, reiterate my desire that clause 40 and clause 41 not be approved by this committee.
Senator Milne: I intend to vote against both clauses 40 and 41. Had the president come in yesterday with some amendments that limited the application of these two particular clauses of the bill to Elections Canada and perhaps to Statistics Canada, and limited it and expanded it from 90 days, where it presently is, to the 165 days that she spoke about, rather than open-ended as these two clauses are, I would have supported that amendment. She did not do so, so I intend to vote against both of these clauses.
Senator Baker: Is it my understanding then that there is an indication for this committee that if these proposed sections are voted down now, that someone would be considering an amendment at third reading to reintroduce the power up to a limit of 165 days just for the Chief Electoral Officer?
Senator Milne: I will not do it. It may come from the government.
Senator Stratton: I am not speaking for the government here but I would think if you vote this down, they would obviously take a look at it.
Senator Joyal: On a point of order, this might be technical, but I am looking at my colleagues on the other side. If we vote down clauses 40 and 41, we will have to change the title of the bill, because the title of the bill refers to the Public Service Employment Act.
Senator Andreychuk: Yes.
Senator Joyal: We have to be mindful of that to ensure that we will remain correct.
The Chairman: We can address it when we ask, ``Shall the title carry?''
Senator Baker: Mr. Chairman, I remind you to keep in mind that if an amendment is put at third reading, you will have to reverse it.
The Chairman: Honourable senators, shall clause 40 carry? Agreed?
Some Hon. Senators: No.
The Chairman: Clause 40 is not carried, on division.
Senator Stratton: On division.
The Chairman: Shall clause 41 carry?
Some Hon. Senators: No.
The Chairman: Clause 41 is not carried, on division.
Senator Stratton: On division.
The Chairman: Shall clause 42 carry?
[Translation]
Senator Nolin: I would like to move the following amendment. In the French version, line 9 on page 17, add the following:
42. (1) Sous réserve du paragraphe 554(1) de la Loi électorale du Canada, les articles 3, 6, 8 et 9, le [. . .]
Let me explain the reason for the amendment. If you have read the Elections Act, you will remember that it contains a general provision on the coming into force of amendments to the act and a period of two months is stipulated. To be sure that this section of the act cannot be applied to the case we are interested in, we prevent the possibility with this amendment.
[English]
Am I summarizing it properly?
Mr. McDougall: Yes.
Ms. Kim: Yes.
Senator Nolin: Good. Thank you.
The Chairman: Is there further discussion? Are honourable senators in favour of the amendment?
Some Hon. Senators: Agreed.
[Translation]
Senator Joyal: Can I ask Senator Nolin to repeat the number of the line he is referring to?
Senator Nolin: Line 9 on page 17.
Senator Joyal: Fine. I was following on the other side, so I apologize for interrupting.
Senator Nolin: We also have an amendment —
Senator Joyal: Yes, because it is line 9 in the English version. That is why I wanted to be sure.
Senator Nolin: I began by specifying ``in the French version.''
[English]
The Chairman: Honourable senators, there is another proposed amendment to the clause before I call. It is from Elections Canada. Does everyone have it? Is someone proposing to move it?
Senator Joyal: Why do you not move it, Senator Nolin?
The Chairman: Let me tell people where we are. We are in clause 42 and Senator Nolin has moved an amendment, for which there is general agreement. I have not called for the clause yet because there is a second proposed amendment from Elections Canada and Senator Joyal has agreed to move it.
Senator Fraser: There are two amendments. Does Senator Joyal plan to wrap them up together or move them separately?
The Chairman: They are amendments to the same clause.
Senator Fraser: I ask because I have a question about the clause 42(2).
The Chairman: He is just about to move the second now.
[Translation]
Senator Joyal: I move that in clause 42 on page 17, the line be replaced as follows:
. . .17 à 19, 28(i.1) et (i.2) et 34 entre en vigueur dix mois. . .
[English]
In the English version, line 23, clause 42(2) on page 17, is replaced by the following:
. . . 17 to 19, 28 (i.1) and (i.2) and 34 come into force 10 months. . . .
Senator Fraser: This is a question and not an objection. It is a genuine question. Maybe our experts can answer it.
It is my understanding that the initial period of time was six months. I think I have this straight. It was then amended in the other place, in committee, to eight months. The Chief Electoral Officer is now asking for 10 months.
Why is this infinite expansion occurring?
Mr. McDougall: You are correct as to the history of it. It was six months and amended in the committee to be eight months because the members of that committee believed that additional time was required for the Chief Electoral Officer to implement those provisions. I gather that the testimony you have before you from the Chief Electoral Officer has to do with the time required for the transformation of their systems. Regarding the requirement for testing the changes that are made to their electronic data registry systems, he indicated yesterday that takes 10 months in order to perform and verify the changes.
Senator Fraser: I believe we have skipped over one of the Chief Electoral Officer's proposed amendments. This was the one I had a question about but we will have to go back.
The Chairman: Which one did we miss, Senator Fraser?
Senator Joyal: We missed line 9 on page 17. It is an amendment of the Chief Electoral Officer.
The Chairman: Do you want to move that, Senator Joyal?
Senator Joyal: Yes, line 9 on page 17, is replaced by the following:
. . . 10(2), sections 11, 12, 14 to 16, 20 to 27, 28 (f), (g), (h) and (i), 29 to 33 and. . . .
The Chairman: Would you do the French Senator Joyal?
Senator Joyal: Yes, certainly.
[Translation]
Line 11, page 17 is replaced by the following:
16, 20 à 27, 28 f), g), h) et i), 29 à 33 et 35 à 39 entre en vigueur deux [. . .]
[English]
The Chairman: Honourable senators, shall clause 42, as amended, carry?
Hon. Senators: Agreed.
The Chairman: In English and in French? Agreed.
Honourable senators, shall the title carry?
Some Hon. Senators: No.
Senator Joyal: I move that the title be amended by deleting, after the words ``Election Act and the Public Service Employment Act'':
[Translation]
In French, I move that after the word ``Canada'', the words ``et la Loi sur l'emploi dans la fonction publique'' be removed.
[English]
The Chairman: Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Honourable senators, shall the title carry?
[Translation]
Senator Nolin: On division.
[English]
The Chairman: Shall carry, as amended, on division; is that agreed?
Hon. Senators: Agreed.
The Chairman: Shall the bill carry as amended?
Hon. Senators: Agreed.
The Chairman: Does the committee wish to discuss appending observations to the report?
Some Hon. Senators: No.
Senator Fraser: Mr. Chairman, you will be explaining the reasons for the various amendments? If that is the case, we do not need to append written observations.
The Chairman: Senator Nolin is sponsor of the bill and he will probably do that in his speech.
Senator Fraser: I thought it was the committee chair who did it.
Senator Nolin: We are amending so there will be a report.
The Chairman: Is it agreed that the bill be reported with amendments and without observations at the next sitting of the Senate?
Hon. Senators: Agreed.
Senator Milne: As soon as you can get it all put together.
The Chairman: As soon as it can be put together.
Honourable senators, if there is no other business to come before the committee at this time the meeting is adjourned.
The committee adjourned.