Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7, Evidence - April 9, 2014
OTTAWA, Wednesday, April 9, 2014
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:01 a.m. to examine the subject matter of Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome, colleagues, invited guests and members of the public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our pre-study on Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts. This bill proposes amendments to numerous aspects of Canada's electoral law, along with related amendments to the Telecommunications Act, the Electoral Boundaries Readjustment Act, and the Director of Public Prosecutions Act, among other acts.
The bill is currently being studied by the House of Commons Standing Committee on Procedure and House Affairs, which has heard from a number of witnesses on certain elements of the bill. Our task as a committee is to conduct public hearings on the subject matter of the bill, which will allow us to report on some of our findings prior to its introduction in the Senate.
Our witness this morning is appearing by video conference from Oxford in the United Kingdom: Michael Pinto- Duschinsky, Senior Consultant to Policy Exchange, Constitutional Affairs. Dr. Duschinsky, welcome. We very much appreciate your appearance before the committee today. You have an opening statement, I understand.
[Translation]
Michael Pinto-Duschinsky, Senior Consultant to Policy Exchange, Constitutional Affairs, as an individual: I want to begin by thanking the committee for inviting me.
[English]
In order to save time, I will summarize five points from my longer written statement, which I hope you will have seen, together with my biographical summary. I will then say a word about the memorandum you've just received from Professor Thomas about the extent of electoral fraud in the U.K.
Just to summarize, I'm a British academic and have advised on electoral and constitutional matters in my own country and some 25 others. I was the lead witness before the United Kingdom Committee on Standards in Public Life in its inquiry into the United Kingdom Electoral Commission.
First, the United Kingdom experience may provide useful background to current debates about electoral administration in Canada. In the U.K., there has been a strong feeling that the essential robustness of election procedure may have been too easily sacrificed in the quest for increased voter turnout. This was the predominant line of argument in a major report on the United Kingdom Electoral Commission published in 2007 by the cross-party and very senior Committee on Standards in Public Life. The committee recommended — of course, with regard to Britain alone — streamlining and focusing the U.K. Electoral Commission in two core roles: as regulator of political party funding and as a regulator of electoral administration.
The Committee on Standards also recommended that the Electoral Commission be stripped of responsibility for electoral policy and for encouraging participation in the democratic process. This was not because it felt that these were unimportant functions, but rather that they distracted the Electoral Commission from its core, nitty-gritty administrative tasks.
Second, British views about the need to tighten election administration have been influenced by a series of major proven cases of voting fraud. People have been jailed in 13 different places, and that does not include certain other major convictions that haven't resulted in jail terms. In response, and arguably after undue delay, the United Kingdom Electoral Commission recommended in January 2014 that, in future, voters be required to present a proof of identity at the polls, as is already the requirement in Northern Ireland.
Third, British experience leads me to sympathize, albeit from afar, with some of the principles that appear to be embodied in Bill C-23 and with the proposal to end the peculiarly Canadian system of vouching, though I don't pretend to have studied the details.
Some recent discussions in Canada strike me as misleading since they ask whether higher priority needs to be given to assuring the integrity of the voting system or to securing opportunities for election participation. Both are necessary and should not be viewed as alternatives. Voting should not be made too hard, but over-casual regulations designed to facilitate voting risk undermine elections themselves. On Canada's borders, officials do not permit someone to enter the country without papers and merely on the basis of being vouched for by someone else. So in other areas that are arguably no more important than elections, vouching would be considered insufficient.
Fourth, I therefore sympathize with the proposed end to vouching, but with an essential proviso: The government needs to show there will be adequate measures to ensure that members of marginalized social and ethnic groups retain full opportunities to cast their ballots. There are various ways in which this can be done, and the matter really does need to be discussed at a technical level. Jean-Pierre Kingsley's input on tendered ballots, on the Australian model on which he has been interviewed on CBC, is certainly a possibility.
Fifth, it is reasonable for the Canadian government to question whether the current remit of Elections Canada is too broad. Separating the responsibility for investigation and prosecution of alleged electoral offences from that of electoral administration makes sense in principle, and there are various international precedents. As I mentioned, the case for a limited remit for the national election management body has been widely supported in Britain, as far as our Electoral Commission is concerned.
What I would stress, though, is that the debate about the appropriate role of Elections Canada should revolve around matters, institutional structure rather than personalities. From my work as an academic specialist in the field of comparative election studies, I'm able to testify to the very high international reputation of Elections Canada and its senior officials. When asked by governmental authorities in countries such as Lithuania and Macedonia, where I've been an adviser, to name an electoral management body that could serve as a model for them, I've always answered that it is Elections Canada. Thus, my sympathy with the Canadian government's apparent aim of reducing the possibilities of inaccuracy in the voting process certainly does not imply criticism of Elections Canada. Indeed, I hope that my appearance here today may help build bridges and will encourage positive dialogue.
Finally, I wish to add a comment on the note that Professor Thomas has just written about fraud and the election commission in the United Kingdom. In his note, Professor Thomas greatly understates the extent of proven voting fraud in the U.K. and by so doing demonstrates the danger of complacency. He fails to mention the devastating critique of the U.K. Electoral Commission by the Committee on Standards in Public Life, and the concern of leading U.K. judges. I can expand on this point in questions if you wish. Thank you very much.
The Chair: We have a number of senators anxious to ask questions, and we will begin with the deputy chair of the committee.
Senator Baker: Thank you to the witness. We are honoured to have you testify before our committee of the Senate today. I would like to ask you first, in being able to compare the Canadian system to other systems of voting in the world, is there any other system comparable to the Canadian system? I'm the oldest person on this committee. I've been on Parliament Hill for 40 years. Prior to 2007, the very time when the report came out in Britain that you referenced, there was a report from the House of Commons that suggested changes to the Elections Act. And for the first time, because it was adopted by the government in 2007, Canadians had to show ID. Prior to that, there was no requirement. If you were on the voters list, you just said this is me, this is the address you've got me at, so therefore I'll go and vote. If I'm not there, I take an oath that I belong to this polling division, and that was it.
The changes came in 2007 requiring documentation, identification, and we have had several court cases since then based on those requirements. I imagine we'll have many more court proceedings as a result of this most recent change.
Professor, the main point about the Canadian system — and I don't know if this is comparable to any other system in the world — is that we have section 3 in the Canadian Charter of Rights and Freedoms, which says every citizen has a right to vote in any federal or provincial election. All you need to be is a citizen, and in a particular polling division in a provincial or federal election. If you add anything to that, it's a violation of the Charter and that's what every court case has said. So then it boils down to whether or not it's demonstrably justified in a free and democratic society, as we define Canada to be in the Charter. Do the salutary effects of the legislation outweigh the deleterious effects of the legislation? It's upon that judgment that court decisions rest regarding requirements of identification.
Is there any other system we can logically and reasonably compare the Canadian system to? In Canada you have the constitutional right, you have be a citizen and be living in a particular area. The final judgment is made on salutary and deleterious effects. Is there any other jurisdiction that you can think of that operates that way?
Mr. Pinto-Duschinsky: You are bringing up the question of the Charter of Rights and Freedoms and of court decisions on this, and this is itself an extremely complicated area. I was a member of the U.K. Commission on a Bill of Rights so I'm very much aware of the controversies about court decisions on these things.
Let's be clear. From the UN charter and convention, universal suffrage in fair and secret elections is a basic rule. So we certainly do start off with the view that everyone must have a vote. There are a few exceptions. There are questions about prisoner voting, there are questions about, say, the British Royal Family or members of our House of Lords. If you were the equivalent in Britain you wouldn't have the right to vote, but you would be an exception. However, in general terms, everybody has the right to vote.
I don't believe that necessarily implies you have to prove that everybody who presents themselves at a polling station can't vote or else their ballot must be accepted. After all, we don't know if people are citizens. We have a very mobile population.
I would have thought it would be unreasonable to so tilt the balance that the assumption is that everyone who presents themselves can vote unless it's otherwise, and I would be surprised if future courts were acting that way. What we really need is a matter of common sense. In order to safeguard the integrity and reputation of elections, introduce reasonable measures that assure us that those who cast their ballots are whom they say they are and they're entitled to vote, and those who are not entitled to vote don't cast their ballots. That's what a good democracy is, and what we should all aim for together is a system that is accurate and rigorous to that extent, but is also inclusive.
I think the arguments in principle, which are being slightly unhealthy in Canada recently, have been to suggest that you go one way or the other. We surely must do both.
Senator Frum: Welcome, Dr. Duschinsky. It's good to see you and thank you for joining us today. In your statement to us, you referred to the unhealthy debate we're having in Canada. I agree with you that it is unhealthy because one of the arguments that is made by opponents of this bill is that there hasn't been sufficient evidence of fraud and, therefore, that one shouldn't try to make the rules more robust in the absence of evidence of fraud. You have said that it's not enough to argue that procedures haven't been abused in practice; you must ensure that procedures are robust enough so that they're not open to abuse.
I would like to add, as part of that question, a paragraph from the Neufeld compliance report from the last election where he says that 12 million Canadians cast ballots on May 2, 2011, and that the audit indicates that the application of specific legal safeguards in place to ensure that each elector is actually eligible to vote were seriously deficient in more than 165,000 cases due to systemic errors made by election officials. I guess that's a two-part question. How do you react to 165,000 errors, but, even in the absence of those errors, what about this argument that we don't have fraud in Canada? How do you react to that?
Mr. Pinto-Duschinsky: I have a lot of sympathy with Harry Neufeld's work on this. He does distinguish between actual proven fraud and administrative error. In Britain, there has been proven fraud, but it should be noted that it was only proven after many years of denial. For many years, the government and the electoral authorities were in denial, and then some spectacular cases came up afterwards, especially one in Birmingham, England. Then, it turned out there had been all sorts of local evidence that had been systematically ignored. If it turns out that the difficulty is merely theoretical in Canada, then I think that is an important point, and so I certainly wouldn't ignore what such a senior election administrator as Mr. Neufeld has said.
On the other hand, we have found in Britain that, if a system is open to abuse, then sooner or later — and usually sooner — that abuse will occur. I think that, if you look at what happened in Britain, you'll see that, as soon as certain cases started coming up, then the police and judges did give the view that the system had been open to fraud all along. For example, the assistant commissioner of the Metropolitan Police, the famous Scotland Yard, said that it was the view of their Special Prosecutions Unit that widespread use of postal votes had opened up a ``whole new area to be exploited by the fraudster, and the opportunity has been taken.'' A senior judge said that ``the system invites fraud.'' Another judge said that the system was ``wide open to fraud.'' The chair of the Committee on Standards in Public Life said that electoral fraud is ``a real and potent threat to our democracy.''
So although I would accept Mr. Neufeld's point, I do think that you have to err on the side of caution as far as the robustness of the election process is concerned, provided that you also have special measures to ensure that disadvantaged groups can be registered and don't suffer.
So I would be tough, on the one hand, on the rules but also active in special measures to ensure that those rules don't bear on disadvantaged groups.
Senator Frum: Chair, may I add something to that? I'm intrigued by this concept of electoral commissions being in denial and not pursuing investigations. One thing we've learned in these hearings so far is that, for example, in our vouching system there is no follow-up. Once someone has been vouched for and the voucher, either properly or improperly — in a third of cases it was improperly — vouches, Elections Canada then does nothing with those ballots afterwards to audit them or to ensure that there was appropriate compliance.
So that, to me, is being in denial, showing no interest in investigating or auditing an important process. I'm just wondering about that idea about elections commissions. Again, I agree with you that we should not get personal, that it is the inherent nature of an elections commission to be in denial, which you said you see in your own country.
Mr. Pinto-Duschinsky: I do think it's important that we don't make groundless imputations against senior electoral administrators. I think we draw back the opportunity of, really, a sensible discussion if we go in that direction. As I say, I have the greatest respect over many years for your election administrators.
I think, however, that there are some systematic questions that are opened. An election administration involves, on the one hand, a lot of very detailed work that is rather boring, frankly, that has to be done accurately. It's rather like hospital screening in that there are a lot of things that have to be done. The kind of administrative set-up that is efficient for that is often not the same as the kind of set-up that is investigative. In other words, for investigation, you require forensic skills, a certain amount of suspicion. The kind of organization that is there to sniff out what's going wrong is often not the kind of organization that is running tens of millions of ballots, and they're rather different functions. The trouble is that, during an election period, the electoral administrators are so busy doing their jobs that they don't have time, and they don't employ the kinds of people who would be investigators. So you need different teams to do the different jobs. That's from the nature of the jobs themselves and not from any lack of merit of the people and organizations involved.
Senator Frum: As you know, that is in our bill. I will let some of my colleagues follow up on that because, indeed, you've described one of the important measures of Bill C-23. I'll hand it over to someone else to continue.
Senator Moore: Thank you, doctor, for being here. In your introductory remarks, you said that the electoral commission recommended, in January 2014, that, in future, voters be required to present a proof of identity, as is already the requirement in Northern Ireland.
What is the proof of identity? Is it in the form of a card? Is it something that's issued by the electoral commission prior to voting, and what information is in that identity piece, whatever it is?
Mr. Pinto-Duschinsky: Here, I would follow Professor Thomas in the memo that he sent you. The U.K. Electoral Commission declared, in January of this year, its desire to include that but hasn't yet said exactly the form that it should take. So we don't know yet. That's the simple answer. The slightly more complex answer — and I hope that I can help a bit on this — is that we have had a more stringent system operating in Northern Ireland. In Northern Ireland, you don't require an address, but you do require a photo ID.
If you can't get a document, you can be registered, with a special document, by the electoral authorities before the election. This document is something rather more robust than your voter information card, which is sent out automatically.
So I think that the implication for Canada is that, if there are people who can't have the photo IDs or documents with addresses and if the voter information card is inaccurate in about 8 per cent of cases, there should be a facility to register with a special identification before the election so that you can come in on election day and cast your ballot. In other words, to have a rather beefed up version of the voter information card that is registered before polling day. The logic would be to organize especially old people's homes, university campuses and other areas so that you would not be denying the vote to people who could not produce address IDs. I hope that is a bit helpful.
Senator Moore: Yes, a bit.
In Northern Ireland what are the accepted forms of photo ID? Is it the driver's licence? I don't know if you have health cards in that country. What forms are acceptable there, and which may you be following in the U.K.?
Mr. Pinto-Duschinsky: I looked up the website of the Northern Ireland electoral office. That information is there in detail, if I may refer you to that. If you would like me to send it to you afterwards, I am happy to do so.
Senator Moore: It would be helpful if you would send that to the clerk of the committee.
In the U.K., do you permit robo-calling? Are you familiar with that? Do you have that in your system?
Mr. Pinto-Duschinsky: Well, I did come across robo-calling only in doing my homework before this meeting. I am not aware of this. Certainly, if there has been organized calling to mislead voters, it would constitute a real offence — if you are trying to dissuade people from voting. The answer is that I am not aware of it, but if you had it, I am sure that we could look askance at it.
Senator Moore: So it does not exist in the U.K.
Mr. Pinto-Duschinsky: I have not come across it, although there are telephone banks and so forth. I have not come across its use in elections.
Senator Moore: It has been used here and has been proven to be fraudulent by the courts.
In this bill that is before us, the commissioner does not have the power to compel witnesses; records are only kept for one year; and the records do not include the telephone number of the person called. I don't see how the commissioner can do his or her job. It almost looks to me like the system is designed so that he or she can't do the job. Do you have any thoughts on that? You have looked at the bill.
Mr. Pinto-Duschinsky: I am slightly disturbed about something that is behind your question. There has been an implication in the debate from the opposition that the government, in making its various proposals, has deliberately wanted to allow certain practices and to not allow others. Therefore, the bona fides of all these are suspect.
Senator Moore: Yes.
Mr. Pinto-Duschinsky: Now, knowing human beings and politicians, politicians often deserve to be regarded with suspicion; so it's possible. People do compete for votes in clean and dirty ways. I am not going to accuse anybody of having done that. I do feel that although we must pay regard to human nature, it applies to all sides in politics. It applies to administrators and to everybody. We are all human beings and subject to frailties.
I hope that the discussion can look at the realities because that is how you find technical solutions. If people are impugning the bona fides of others, then you will never come to a common sense, robust answer to questions. I would rather not impugn anyone's motives but to look for effective ways of controlling things that need to be controlled. Needed now are lines of communication between officials and the parties, with each other, to try to resolve the technical questions to everyone's satisfaction.
The Chair: Thank you. We will move on to Senator Dagenais.
Mr. Pinto-Duschinsky: You seem to be a bit dissatisfied with that answer. Unless one can have some procedures to let one go further, there will be an argument and nobody will convince anybody.
Senator Baker: He is a typical lawyer, our witness.
Senator Moore: I will come back on the second round. Thank you.
[Translation]
Senator Dagenais: I agree with what you are saying. Obviously, the election is a recurring event. It is held every three or four years. That is not something that comes upon us at the last minute. So measures should be taken immediately to ensure that citizens can identify themselves — and you talked about a card for that purpose.
It must be said that times have changed. We have to align our ways of doing things with that changing reality. A few years ago, when people came to a Parliament building, they would be welcomed at the entrance. Nowadays, when someone arrives in a building of Parliament, they have to provide an ID, an address, their name and practically their birth certificate.
I think that election procedure is also consistent with modern times, and the voting process should be adjusted. I would like to hear what you have to say about that, although you have touched on it.
[English]
Mr. Pinto-Duschinsky: I am not sure that I understand your question. Is the implication of your question that in modern conditions it is reasonable to expect fuller identification of individuals?
[Translation]
Senator Dagenais: Yes, exactly. Not so long ago, we would just board a plane with our luggage. Today, we have to go through security checks, obtain our boarding pass and provide identification. We now have to provide identification everywhere. What is behind that change? We could talk about this for a long time.
The right to vote is important. When you go to Parliament, you have to identify yourself. It is perfectly normal for those who work inside Parliament and are elected by Canadians — when they exercise their fundamental right to vote — to have to identify themselves. That is part of the way we live today. We have to identify ourselves wherever we go. That is what my question is about, and I would like to hear your comments. Should we not modernize our procedures?
[English]
Mr. Pinto-Duschinsky: There is a fairly basic dilemma here. In countries where they have a national identity card, electoral administration becomes easier. In Denmark, for example, you have to register your address with the local police within a month of moving; so there is a tradition of greater registration with the authorities by individuals.
In countries like the United Kingdom, for example, we have traditionally regarded compulsory individual identity cards as restrictive of freedom, of being something that occurs in a police state rather than a free state. There has been a resistance to the introduction of a national identity card.
In opposition, the Conservative Party resisted the proposal by Labour that an identity card should be introduced in Britain on individual freedom grounds. Those grounds undoubtedly make elections more difficult. The question which then arises is this: Should the demands of an election card for everyone be a back-door route towards an individual identity card for all purposes? I think that is an important underlying question.
In Britain we haven't resolved that because there is the issue of principle about individual freedom, but if we have the view that we don't have a national identity card then the electoral authorities have a much harder job to do. I am afraid that is just an underlying reality.
[Translation]
Senator Dagenais: For a number of years, Canadians have had to have a social insurance number to benefit from government services. That does not restrict their freedoms; on the contrary, it allows them to use certain social benefits provided by the government.
As for the restriction of freedoms, we can talk about that, but I am not convinced.
[English]
Senator McIntyre: Thank you for appearing here this morning. While you say you haven't studied the bill, your comments tell us a slightly different story. You seem to understand it quite well.
Regarding voter fraud, you mentioned in the U.K. there were something like 13 cases. You didn't say the word ``jail'' but they were pretty severe apparently and others were not as severe yet charged and now you have proof of identity. I want you to expand on this and I will go on and ask my other questions.
I believe I quote you correctly saying ``casual vouching approval undermines the strength of the election process.''
In testimony last evening we heard from lawyer who has had considerable experience in election cases. He said that for effective voting these ingredients need to be there: fairness, integrity and transparency. This morning you added another, and I'd like you to expand on this: Accuracy; the accuracy of the vote.
Change is always a challenge; for example, if we were to do away with the voucher system. Could you comment on any suggestions as to how we could be proactive to educate those in the minority groups or individuals who are less likely to vote? Could you expand on how we may be able to educate them?
Finally, I want to say this: Via the BBC, we sometimes see your Parliament in action and they beat up on one another quite well. We do the same here and that is our way of getting effective, proper and correct legislation. In the end, however, we all shake hands and we accept it.
Would you give your comments on those points?
Mr. Pinto-Duschinsky: If I could start at the end, I was attacked in the House of Commons by the former Minister of Justice who talked about my so-called research being much in need of peer review. I then spoke to his political adviser who said, ``Oh, you don't want to take any notice of that. That is mere parliamentary knock about. In fact, he very much values your advice.'' He then asked me to run a cross-party seminar on the bill that he was introducing. Therefore I'm pleased, in a way, to hear that I shouldn't take too much notice of what have been some tough things that have been said across the floor recently.
What happened in Britain was that after the tough things in public, the officials and experts from different parties and electoral administrators did get together in private to have cross-party discussion about some of the technical details. I can't help feeling that with a bill as complex as the one before you, a lot of the divisions that seem to be huge gulfs of principle will be actually quite easily solved with technical discussion. That, I think, leads on to the answer to your question.
If, for example, you have the groups that Mr. Neufeld and Mr. Mayrand were saying could be disadvantaged, which I understand were old people, students and First Nation members in particular, I think there are already efforts made by Elections Canada before an election, for example, to go into an old age home to make sure that the lists are up to date. What doesn't happen is that after those visits there isn't a special voter card given that a person who doesn't have proof of address can then bring into the polling station. They only have the voter information card, which has certain disadvantages to it.
I think that you could quite easily devise a special form of card that has come when electoral officials have visited the old age home; when they have been in the First Nations area and on student campuses that will allow people to vote. It won't take too long, with officials together and people from different parties, to devise a way so that a sensible substitute for vouching will be possible. I am confident that it will.
Senator Batters: Thank you very much for coming before our committee today from such a distance. We appreciate you taking time out of your busy life to do so and help us understand your point of view more.
I was interested to hear you in your opening comment. I thought that this was a crucial part of your presentation when you wrote:
I am not sufficiently aware of the living conditions of many members of Canadian First Nations to be able to suggest how best they may be provided with proof of identity and address which they will then be able to present when they visit polling stations. The end of vouching must be accompanied by and be conditional upon an adequate scheme to provide them and members of other disadvantaged groups with up-to-date proof of identity.
I wasn't sure if you were aware that there are 39 forms of identification and a number of those are specifically targeted to some traditionally disadvantaged groups. Some of those are an attestation of residence issued by the responsible authority of a First Nations band or reserve. Rather than vouching, where people are only able to vouch for one particular person in that sort of case, the appropriate official on a First Nations reserve would be able to list all the different people who live on their reserve and the proof of their residence is being on that particular list.
There are similar types of lists that can be an attestation of residence such as a letter of stay, admission form or statement of benefits that can be issued from the responsible authority of a shelter, soup kitchen, student residence, senior residence or long-term care facility.
In my view, that would be what you're speaking about here when you're talking about an adequate scheme to provide them and these members of disadvantaged groups with an up-to-date proof of identity. Do you have any comment on that?
I also thought it was important when you were responding to my colleague Senator Baker about the need for a reasonable balance between the two, reasonable safeguards of the integrity of the electoral system so we can show that people are who they say are — that's what a good democracy is — balanced with an inclusive nature. Could you comment on that?
Mr. Pinto-Duschinsky: Thank you very much. About First Nations, I have only been able read in to what has been said, and I have made one or two inquiries with those in the know as well.
As I understand it, certainly, Mr. Neufeld's objection, when I think a colleague of yours brought out some of the 39 forms of identification, was that he said they weren't valid because they didn't have address on it. As I understand it, one of the problems that those who are making objections are bringing forward is that certain forms of identification aren't useful, given the rule about addresses. So I don't know.
Now you are saying that maybe that is not a valid objection. I can't tell. If there are valid ways already, well and good, but I think everybody needs to be satisfied. There has been enough concern expressed about whether those 39 forms do work to make me feel that the matter needs to be looked at further. That would be my first reaction.
The second is that I gather that, for example, with the Indian status card — and I was speaking to an official about this — that you could live, as he told me, in downtown Montreal and have an Indian status card, that the status card and the address are not the same thing. On the other hand, the list of persons living on a reservation brought up by the officials of the reservation would be a collective document, and each individual person wouldn't have a copy of that. If they are to go to a polling station and say, ``I live on that reservation and I am not somebody with First Nation status living in Montreal,'' you would need a personal card from the administrator, and it is said that it's not given at the moment. So I think you'd have to look to make sure that the system works in practice.
I think you will be able to do that, but you do need to do that so that everybody is satisfied.
Senator Batters: Right, and, sir, with respect to the statement of attestation that you were just referring to, I think the way it typically works is the elections officials at those particular polling stations that would be appropriate for those First Nations reserves have those statements of attestations there, rather than every particular person having to bring it in because there may be a list of 100-and-some people on these types of lists. That is how the system works. I know. I live in the province of Saskatchewan. We have a similar system that was used in the 2011 election in Saskatchewan. I think they used almost the same types of identification that are under the federal system and a similar situation was used there. That was certainly a widespread way of people on First Nations reserves being able to prove their residency because, yes, some of those 39 types of ID are only applicable to proof of identity, but there are a number of them, in particular those attestations of residence that are applicable to show a person's residence.
Senator Baker was earlier talking about the right to vote, and that is certainly a very fundamental right under our system in Canada. But I would submit that is accompanied by the very reasonable obligation to prove that you are who you say you are, as you indicated today. In Canada, that includes not only identity but residence is a very important part of that as well under our system.
We now have about 18 months before the next election. We have a fixed term election, and that will be held in October 2015. So there is plenty of time, I would submit. If people don't have any of these 39 types of identification, there are 18 months where they can work toward getting one of those pieces of ID in the meantime. There is a lot of time to organize their affairs to be able to do that, whether that is getting, if it is a student, correspondence issued by a school, college or university. They have time to be able to get those types of things.
Would you agree that is a reasonable obligation so that we have, as you referred to earlier, a common sense, robust answer to this issue?
Mr. Pinto-Duschinsky: Well, I think I did give the answer in answer to Senator Baker that you did need to have a system that gave confidence in the election and that I regard that confidence as adding to the validity of elections. After all, since the election is so basic to our way of life, and we fought world wars to have elections, we need to make sure that they are properly organized. That is not a subtraction from election; it is a way of honouring elections.
I think that your answer really illustrates the need for a discussion that isn't based on principle but is based on the nitty-gritty practicalities. We need to know if 120,000 people really are being disenfranchised or not, and if so, how we can solve the problem. I think the less highfalutin the language and the more common sense there is, we can get down to making sure there actually isn't a problem and that everybody is satisfied. That is the answer rather than going into more and more high-flown rhetoric, one side attacking the other. That is what I think is needed and is possible.
Senator Batters: Thank you very much.
Senator McIntyre: Thank you, doctor, for your presentation.
In looking at your biographical summary, I note that you are the president of the International Political Science Association's research committee on political finance and corruption. I don't think you will have any problems answering my questions because this question has to do with donations and, more particularly, donations bequeathed through wills.
Canada has strict limits on money in politics in order to ensure a level playing field. For example, in 2006, the government reduced the personal contribution limit and eliminated the corporate and union contributions. However, under the current law, donations set aside in wills are not subject to the contribution limit. There is no question that limiting contributions provided in wills eliminates an exception for wealthy individuals to provide large donations to political parties.
Under Bill C-14, any contribution bequeathed in a will would be subject to the contribution limit and would be permitted only once. What are your thoughts on this? Can you tell us anything regarding donations in your country?
Mr. Pinto-Duschinsky: First, to give a plug to the International Political Science Association, since you have mentioned it, it is having its next world congress in Montreal, and Montreal is the headquarters of the International Political Science Association, so Canada is the centre of our world.
The issue of control of political donations is a very difficult and controversial one for a number of reasons. One is that you certainly do have the principle of the level playing field, but you also have the principle of freedom of expression, and freedom of expression is often restricted if people can't publish, can't spend money. For example, when there was British legislation to restrict what interest groups could spend before an election, there was widespread objection on the ground that it stopped freedom of expression.
The trouble with limits that are designed to level the playing field is that they're often very difficult to enforce. For example, in Britain, we find that if you want to influence politics, you don't do it by giving money to a political party. You do it by owning and running a newspaper.
Are you to say that nobody is to spend more than $1,500 on a newspaper, because then the rich can have more money to influence the political process than the poor? In other words, if you have the limit only on political parties but not on newspapers, not on interest groups and other bodies, you don't control the role of money in politics altogether.
I think that scholars have found that limits either on spending or on donations actually do lead to evasion and so aren't an ideal form of regulation, although they do exist in many countries, and they do exist in my own country, in Britain, though not to the extent that they are in Canada. So I sympathize with the view that there should be those limits, but they're not a panacea.
Do you want me to comment on the question of legacies?
Senator McIntyre: Yes, please do.
Mr. Pinto-Duschinsky: In Britain, we also have this as a loophole, and we have very strict tax laws, inheritance taxes, but you have considerable relief if you give money to a political party. It is something of an exception under British law and is an issue.
I have very mixed feelings about spending limits, but largely because of the loopholes that exist in those limits. I feel that if you are to restrict political parties without, at the same time, restricting interest groups and newspapers, then you're in trouble. If you do restrict interest groups — I think you do have rules on this in Canada, and there have been law cases on this in Canada — then questions of freedom of speech arise, and so there is a real underlying conflict between the level playing field and freedom of expression.
Interestingly enough, when Mr. Mayrand and I were participating in the Commonwealth Electoral Network discussion on this in London last year, this was one of the trade-offs that was under discussion. If that's a vague answer, it's because it's a different question.
The Chair: I wouldn't mind adding a comment.
I represent Ontario in the Senate. Certainly in Ontario, with respect to third-party advertising, there has been considerable concern in this province when in the last election a third-party group called Working Families spent — political parties have caps, limits, legislative caps on what they can spend — this third-party organization spent more than all of the political parties combined in the province of Ontario.
I think there are legitimate concerns around that. I guess from where I sit, I don't see how you could ever enter the area of trying to limit what newspapers or other media outlets say or do with respect to political campaigns. That is just a comment.
Senator Baker: I want to question you, sir, on your statement. Your exact words were, the ``peculiarly Canadian system of vouching.''
``Peculiarly Canadian.'' I suppose that's where the problem arises in analyzing legislation. I don't know of any other jurisdiction in which the right to vote — when we pass a law in Parliament and that law is adjudicated in the courts — the Supreme Court of Canada has ruled in a case called Sauvé v. Canada, that deference shall not be shown to the legislators. Deference shall not be shown. The Supreme Court of Canada says it would warrant careful examination, but deference shall not be shown.
I don't know of any other jurisdiction that you've studied in which the legislature is not shown some deference by the courts.
My main question, though, is this: You said ``peculiarly Canadian'' as it relates to vouching. It's peculiarly Canadian, I suppose, because we have an act, the Elections Act, that defines — the senator was just referring to my remarks about residence. Well, your current address or your current residence under section 8 of the act says it shall be, and then it defines if you're in a shelter or so on. One of the subsections is where you sleep.
If you have a senior citizen who goes and visits their children while an election campaign is on or is there when an election takes place, and that person is guaranteed to vote under section 3 of our Charter, that person does not have the required documentation that they live at their ``current address,'' so they get the son and daughter to vouch for them. That's why we put in the vouching provision in 2007 as a fail-safe measure.
We have our act the way it is and the way the definitions are, and I'm surprised that you would say this is ``peculiarly Canadian.'' I'm sure that there must be other jurisdictions in which vouching, that is, a sworn statement that you know that person, and you know where they live, and you also live in that polling division, and the other person takes an oath, surely there are fail-safe measures like that in other jurisdictions in the democratic world.
Mr. Pinto-Duschinsky: Senator, I was frightened that I would be asked this question, so I did try and look up the answer before I came. I looked up the Administration and Cost of Elections Electoral Encyclopaedia, and Alan Wall has a section on voting operations. He's an Australian who is a world expert on this.
I didn't find the answer there, although he did say that the form of identity must be of high quality. We can wing a message on to Australia to Alan Wall to see if he knows any international experience on that, or ask the Administration and Cost of Elections expert network if they know, and we can let you know.
By ``peculiarly Canadian,'' I knew I would make some error in wording, because ``peculiar'' sounds rather fishy. It's like ``funny, ha ha'' kind of thing, and the last thing I would want to do is to say that because it is specifically Canadian that it is peculiar in the sense of being somehow unmeritorious. Please excuse me if my wording is less than felicitous on that. So mea culpa.
On your other point about where you reside, there is a more serious point here. In the system where people are elected for constituencies, for ridings, it's not only whether somebody is qualified to vote but whether they're qualified to vote in a particular place for a particular member of Parliament, and so address becomes important from that point of view and this needs to be defined.
In Britain, traditionally we have had the definition of where you have normally resided on the night of October 10, and that was traditionally a legal definition, but there must be some form of legal definition. The fact that you happen to be visiting a relative or indeed a friend or anybody else on a particular day doesn't make you a resident there. It is a normal place of residence.
I'm sure that your electoral officials could give us the relevant election law as to what ``place of residence'' means under Canadian law. We have examples, I'm sure, from British cases on that as well.
Senator Baker: Thank you. We've spelled it out in the subsections under section 8 of the act.
It has been a real pleasure and honour having you as a witness before this committee. I want to thank you.
Mr. Pinto-Duschinsky: Thank you very much.
Senator Frum: I have two questions. They are both fairly big, so I will tell you what they are up front. I can remind you of the second one after, but I want to make sure there is time to discuss both.
The first one is back to this issue about third-party advertising. In Bill C-23, there will be a new clause that will create a requirement for third parties to register with Elections Canada to certify that they have a connection to Canada. I want to talk about just this idea about third parties from outside of a country trying to influence an election. Is registering the correct way in trying to prevent illegitimate parties from trying to influence Canadian elections? That's one question.
The next question I would like you to discuss, you mention that the U.K. Electoral Commission recommended that it be stripped of its responsibility for encouraging democratic participation. Bill C-23 also has measures that will remove that function. It's a very important function, democracy promotion — no one is saying it isn't — but it will be removed from Elections Canada.
I would like you to comment on where you think that function properly belongs in the process.
Mr. Pinto-Duschinsky: May I deal with the second one first?
Senator Frum: By all means.
Mr. Pinto-Duschinsky: Clearly, we do want civic education in schools, for example. We want to have citizens informed that elections are going to take place and that they should come out to vote. The trouble is that general civic education tends to be a different function from the function of the nitty-gritty of election organization. What we found in Britain was that it's very tempting for an election commission to engage in that rather than in the more difficult and less glamorous task of making sure that Mr. So-and-so and Ms. So-and-so on 155 number on that street is registered or isn't registered. So they'll tend to go after the soft activities of promotion rather than the core activities of election administration, so that's the reason of wanting to remove the temptation to do something else.
Now, where should it be? This will depend on the activity. I mean, clearly, if schools are involved, then we want to make sure that it's those authorities that are responsible for education. If it's public information, in Britain, there's a central office of information that is engaged in public information campaigns, so it could well be a body that is responsible for public information there.
I think there are a number of answers. You obviously do need to ensure that democracy promotion and get-out-the- vote is politically neutral; in other words, there isn't a temptation for a particular party to say, ``Let's have a special campaign among a group that will vote for us in practice.'' There must be some confidence that all groups are being targeted.
Provided that that happens, then I think one of the educational public information bodies is a logical place for that. But again, provided that it's clear that the motive isn't to punish Elections Canada; it's to define functions properly and to enable them to be fulfilled in a more rigorous way.
Senator Frum: I want to ask you one quick question. You made a comment about targeting specific groups. Removing that from any body in particular, as a general principle, if you have an organization that is trying to promote fairly, neutrally and in a non-partisan way get out the vote, once the campaign starts focusing on particular groups, are you saying that would then make it a less legitimate campaign; in other words, if it's not an equally distributed focus?
Mr. Pinto-Duschinsky: This is a very difficult question and one that I must admit I've not made up my mind on. Let me tell you why.
A number of years ago, almost as old as Senator Baker's years, I did a piece of work during Ms. Thatcher's premiership. We discovered then, as now, that there are certain groups that tend not to register to vote in the polls, such as young people or people of no fixed abode. So there is a common-sense reason to target efforts on those groups that are under-registered in order to register them, and there is a legitimate reason.
It turns out that, in Britain, some of those groups vote disproportionately for the Labour Party rather than the Conservative Party, so that there is a motive for Labour to want to register them and for the Conservatives not to want to register them.
I have mixed feelings because on the one hand, I feel that public efforts need to go where those efforts are needed. In other words, one shouldn't take note of the fact that immigrant voters are likely to vote Labour. If they're less registered than others, we want to register them.
On the other hand, there may be a temptation when one party is in government to try and target those groups that are likely to vote for it. In that way, there is the opposite argument that one should go across the board and not try and target particular groups lest that turns into a party political set of motivations.
I'm not sure. I would be very interested to discuss the principles on that further.
Senator Frum: Thank you. Question two.
Mr. Pinto-Duschinsky: I'm sorry to be so complex on that answer, but it is a complicated question.
Senator Frum: Indeed.
Mr. Pinto-Duschinsky: Again, I think that sincere discussion on different sides of this is the way to try and resolve that kind of thing.
Now, as far as your other question about third parties, I do think that third parties often need to register earlier rather than later because if they're not registered with the Electoral Commission, you can have a lot of spending that goes on that just passes unnoticed. In Britain, the registration of third parties for spending purposes has been insufficient and has allowed a lot of loopholes in our spending limits that we have had.
As far as their being from outside, it is actually very difficult to define a foreign company from a domestic company. The term ``foreign'' is difficult, say with media, with many other corporations. What about an international corporation that has a branch within a country but is international? So there is quite a lot of case law and discussion on that, but it's a difficult matter. I would say, however, that early registration is desirable.
Senator Frum: Our wording is that they must have a ``connection'' to Canada, but are you saying that that's kind of a useless definition?
Mr. Pinto-Duschinsky: It seems to me that, if I were a lawyer, I would love that wording because it's bound to lead to legal cases about the meaning of it. You need to look at laws in other jurisdictions about foreign funding to see how they've defined it. It may be worth looking at Britain and one or two other countries to look at what you mean by a ``connection.''
Senator Frum: Thank you so much.
Senator Moore: I'm back, doctor. In her opening remarks Senator Frum, with regard to the Neufeld report — which you've said you're familiar with — mentioned the figure of 165,000 cases. She was talking about vouching and so on. I want to make it clear on the record that Mr. Neufeld, in his report, says that those cases were due to ``systemic errors made by election officials.'' He did not say they were caused by vouching or anything else. I don't want any innuendo here. I don't want you to think that those were vouching errors. They were errors made by officials, not by citizens.
I think it's important that you consider that, because here we are in this legislation talking about ridding ourselves of the vouching process, which I don't know that we can do, given our Constitution. Beyond that, we're not taking that same robust approach toward robo-calls and the proven fraud that they have resulted in.
You say you're not familiar with the robo-calls system. Maybe you could look at what has happened in Canada in that regard and consider the provisions of this legislation, which do not give power to compel evidence. They only keep records for a year and they don't keep track of the people who are being called, they don't keep their phone numbers.
Would it be appropriate to ask you to look at this issue and that legislation and file a written opinion with our clerk? This is very important. To me, the robo-calls, the whole thing of suppressing and misdirecting people is so repugnant to our democratic system. As you mentioned earlier, we've fought wars over this. We have Canadians buried in countries all over the world who fought for this. Now we're putting in a system, it's in place and we're not removing it. It's upsetting to me and I think it's repugnant to our whole system. I would like you to look at that. Thank you.
Mr. Pinto-Duschinsky: First, what can I say? If you have asked then I will try and do that. I'm not sure what my onward status is in the Canadian legislative process. I can certainly do my best and will try but, given the fact that I'm an outside individual scholar, I can do that.
What I can say right away, though, is that in all of these cases the more everybody can be satisfied on both sides of the political aisle that things are technically valid and that they are even-handed, then the better the system will be.
Senator Moore: Agreed.
Mr. Pinto-Duschinsky: Clearly there is a great advantage for the political system for everybody to try and talk in a technical way and to lower the temperature and to look and see if they can find a technically robust and fair way that satisfies everybody. The more everybody is satisfied, the better the system and the faith of the system will work.
Certainly, if it turns out that the system is biased one way or the other, then people will be dissatisfied and the governing party will find that its legislation is overturned by the next government, so it's not a good situation.
I can't comment on the details until I have looked at it, though. I'm happy to do that.
Senator Moore: I agree with your comments, and I don't know how the discussions could take place unless there's a spirit of cooperation and moving toward amending some of these provisions or making them more robust so that they make our system better. To me, that is the bottom line here. Everybody is more than open to discussion, but we've got to know that ideas aimed at bettering the system will be positively received.
Senator Batters: I have a supplementary on this particular point dealing with the robo-calling. If you're going to be looking at that, sir, I would suggest that you also look at the House of Commons Standing Committee on Procedure and House Affairs. We sometimes refer to it as the PROC Committee, from March 25, 2014. This is where Jean-Pierre Kingsley, who was the chief of Elections Canada for many years, testified before that committee.
In questioning about that, Tom Lukiwski, a member of Parliament from my home province of Saskatchewan, indicated that at page 5 of the transcript I have:
Finally, I'll just move to a different element of the bill, very quickly to the changes that we have in the bill to try to prevent the problems we saw with robocalling and the Pierre Poutine example in the last election.
Could you comment briefly on why the changes we are proposing in this bill would help prevent those types of situations from occurring again in the future?
Mr. Jean-Pierre Kingsley responded:
The bill will require that people who offer the services that are called robocall services or automated calls must register with the CRTC and they must file their names. People who retain their services must also be known and the messages must be kept, under the present bill, for one year.
He went on to state a couple of other particulars, and then Mr. Lukiwski went on to ask Mr. Kingsley:
In your opinion then, would the changes we are proposing ultimately help prevent the same Pierre Poutine situation we saw in the last federal election?
Mr. Kingsley responded:
Yes, they would.
In your review of that issue I think that would be helpful for you to see as well, given Mr. Kingsley's vast experience with the electoral system in Canada. Thank you.
The Chair: That concludes the questions.
Doctor, we want to thank you for being so generous with your time and your very helpful contribution to the committee's deliberations. Thank you from all of the members here today. It is very much appreciated.
Mr. Pinto-Duschinsky: Thank you. It's been a privilege for me. Good luck with your deliberations.
The Chair: We will now break for an hour and a half. We will return at 2 p.m. to continue our deliberations.
(The committee adjourned.)