Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7, Evidence - April 10, 2014
OTTAWA, Thursday, April 10, 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. Welcome, colleagues, invited guests, and members of the general public who are following today's proceedings of the Senate Standing 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. The 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 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 our findings prior to its introduction in the Senate.
Our first witness this morning is Mr. Yves Côté, Commissioner of Canada Elections, Elections Canada. He is accompanied by Audrey Nowack, Senior Counsel, Compliance and Enforcement, Elections Canada.
Mr. Côté, welcome. It is good to have you with us today. We can begin with your opening statement.
Yves Côté, Commissioner of Canada Elections, Elections Canada: Thank you very much, Mr. Chair.
[Translation]
I would like to thank the committee for inviting me to testify regarding Bill C-23 and its impact on my role as Commissioner of Canada Elections. I am accompanied by Audrey Nowack, Senior Counsel, Compliance and Enforcement, Elections Canada.
Given the time available, I will focus my remarks on three aspects of the bill that are of particular concern to my office. They are the following: the structure changes contained in Bill C-23; the lack of adequate powers to conduct timely investigations; and the limitations imposed on my ability to communicate with the public.
[English]
The structural changes proposed by Bill C-23 are, in my view, both unnecessary and problematic. First, I would like to stress the fact that, as commissioner, I have enjoyed complete and unfettered independence with respect to the conduct of investigations and the choice of enforcement action, including the decision to refer to a matter to the Director of Public Prosecutions, to whom I shall refer as the DPP. Incidentally, my predecessor, the former commissioner, has recently indicated publicly that this was equally true for him.
This should not come as a surprise. The current law was drafted precisely so that the commissioner, not the Chief Electoral Officer, makes decisions regarding investigations and enforcement. Based on experience, I can say that the organizational culture within Elections Canada is one that strongly supports that separation.
[Translation]
I have now been in the job for almost two years, and my independence has never been an issue.
There has been no attempt by the Chief Electoral Officer, anyone at Elections Canada or any other source to interfere in any way with the manner in which my investigators and I do our work. Placing the commissioner within the Office of the Director of Public Prosecutions — DPP — is an attempt to respond to a problem that, in my view, does not exist.
While I make my decision independently, I need to have complete and easy access to the information held by Elections Canada that may be relevant to my investigations — something which Bill C-23 in its current form does not provide for, let alone guarantee. I also rely on the expertise and knowledge of Elections Canada personnel to ensure that my interventions are informed and are not at odds with the agency's manuals, practices and policies.
This is to everyone's benefit, including parties and candidates.
Enforcement cannot and should not be done in a vacuum.
[English]
With respect to regulatory statutes, the need for expertise and coherence between administration and enforcement explains why the trend is to place these two functions in the same agency, not separate them. One example is the Canada Revenue Agency, the largest department of the Government of Canada. It receives and audits tax returns; it also has an investigation branch and can recommend prosecution. This is likewise true of many other federal agencies, for example, Fisheries and Oceans and Environment.
No legal principle and no court decisions stand in the way of this existing structure. In fact, courts that have looked at the issue of communication between, for example, investigators and auditors, including the highest court, have not identified any problem with these two functions residing in the same agency.
[Translation]
However, in placing the commissioner within the Office of the DPP, Bill C-23 would bring under the same roof two functions that are normally kept separate. This is not a natural fit; quite the opposite. When it comes to approving or refusing charges and taking a case to court, it is absolutely essential that the DPP act with a healthy distance from the investigators and the investigation and, crucially, that he be seen as doing so.
If the independence of the commissioner from the Chief Electoral Officer is perceived to be an issue, then I suggest adding the relevant provisions for a fixed-term appointment and security of tenure to the Canada Elections Act, without placing the commissioner's office within another institution.
To conclude on this subject, moving the commissioner to the Office of the DPP is definitely not a step in the right direction.
[English]
I will turn to my second point. The second issue of concern for me relates to the investigative powers of the commissioner. I do believe it is essential to give the commissioner the ability to seek a court order to compel testimony. It is not uncommon — and, in fact, it seems to be more and more frequent — for individuals who are not directly concerned with an investigation but who may, and often do, possess important information, to refuse to cooperate with my office. This causes significant delays and could even compromise investigations.
The comment has been made — and I am sure you have heard it — that even the police do not have such power. That, of course, is true. But the commissioner is not the police, and the Canada Elections Act is not the Criminal Code of Canada.
The Canada Elections Act is a highly regulated regime that operates in a political context where partisan loyalties are generally very strong. The recommendation that both the CEO and I have made is that this power be given to the commissioner, with a number of appropriate safeguards as currently exist, for example, in the Competition Act of Canada. Failure to grant this power would be, Mr. Chair, a missed opportunity.
[Translation]
Finally, I want to express my concern about the limitations Bill C-23 imposes on my ability to inform the public of the results of my investigations and my office's work.
There are certainly excellent reasons to preserve and maintain the confidentiality of investigations. There are, however, two types of communications that I believe it is important for me to do, in a direct and unimpeded manner.
First — and this happens occasionally, as you know — where allegations have been publicly made that cast a doubt on the integrity of an election, and where an investigation shows these allegations to be unfounded, I want to be able to reassure Canadians by making investigative findings public, including by providing factual details of what was uncovered. The previous commissioner did this twice while in office.
Second, it is important that I be able to produce my own annual report on my activities, with observations on trends and concerns.
Contrary to what Bill C-23 proposes, I think this report should not be submitted as part of another report submitted by someone other than me to a government minister.
[English]
In concluding, I would like to say that my concerns do not detract from some of the positive elements in Bill C-23 such as, for example, the increased fines it contains, the creation of some new offences, and the automatic reduction in the reimbursement of election expenses in cases of overspending.
Finally, I am aware — as I'm sure you are aware — of the fact that the minister for democratic reform has indicated, in a letter he sent to the committee of the house, that he may be open to some amendments dealing with the limitation period, as well as the threshold to initiate investigations. These are important issues to resolve, and I hope they will be addressed.
[Translation]
Mr. Chair, I would be pleased to answer any questions, insofar as they do not relate to the particulars of our investigations.
[English]
The Chair: Thank you, sir.
I point out to members that we have remaining a little over 50 minutes for questions and responses, so I encourage you to keep that in mind. Any senator who wishes to ask a question and receive a response will have the opportunity to do so. We will begin with questions from the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you, commissioner, for appearing here today and also to Audrey J. Nowack.
First of all, I think to clarify the record: Two days ago we had Sheila Fraser appear before the committee, and she read into the record the separation of the Director of Public Prosecutions from the investigative stage of a possible charge being laid. She read from the website of the Director of Public Prosecutions to establish that, in fact, the DPP is quite separate from the function that you have and that the DPP only prosecutes a case after a charge is laid.
After listening to your testimony, I think I should, first of all, before I get to my question, clarify this point: While that is true for prosecutions under the Criminal Code, it is not true for prosecutions under the Canada Elections Act. In fact, the Director of Public Prosecutions is the person who decides whether a charge is going to be laid.
Yes, you may go to the Director of Public Prosecutions with your beliefs, but it is the Director of Public Prosecutions who decides that the charge will be laid and then pursues the charge or, in the case of appeals or the appellate division, carries through on those prosecutions.
The Referendum Act contains the same provision, that the Director of Public Prosecutions is the one who determines whether or not an information will be laid or charges will be instituted. A great lawyer from New Brunswick, Senator McIntyre, is nodding his head because he tried to make the point the other day that what was read out in the committee was misleading because it didn't apply to the Canada Elections Act.
I just want to clarify first that you are not the one who decides whether or not charges are laid; it is the Director of Public Prosecutions, who then carries through with the prosecution.
Mr. Côté: You are right on both fronts. The DPP has the sole authority to decide whether a charge will be laid; and if he decides to have a charge laid, then he prosecutes.
Senator Baker: That is just for the record. I think that's important to point out. Some of my colleagues have been trying to make that point.
Here is my main question, Mr. Commissioner. The former commissioners of Elections Canada and the Chief Electoral Officer of Elections Canada have appeared before this committee on many occasions over the years. One of the big things they asked for in 2007, with the big act brought in by the Conservatives — what's the name of the big act?
The Chair: Accountability Act.
Senator Baker: Accountability Act. Right, Mr. Chairman.
What was the big issue at that time? The big issue was that Elections Canada be given the right to have 10 years to prosecute; to have 5 years from the moment that you became aware that there was a problem to the laying of a charge, or 10 years from the date of the occurrence of the alleged offence to the date of laying a charge.
Mr. Côté: Yes.
Senator Baker: I see in this bill a provision that allows an escape, that allows a defence built into the bill, and I'm wondering why it is there. That is, as Senator Moore pointed out, the destruction of documents after one year as far as matters such as the robo-call affair is concerned.
Can you answer the question as to why we would be putting a defence into a bill that you, after 10 years of investigation in carrying through on a charge, when the documents were destroyed 9 years previous to that because we legislated it in this bill, why you think that is there?
Mr. Côté: I would say first that, as I mentioned in my opening remarks, there is another issue with limitation periods in the bill as you have it now, in that for some summary convictions there would be no provision under Bill C-23 in terms of what the limitation period would be. As a result of that, the default position would be that the limitation period prescribed in the Criminal Code for summary conviction offences would apply, and that would be a six-month period.
That is one of the points that we have made, and I think the minister for democratic reform has indicated that he was open to having a change made to address that issue. That's the first issue.
The second issue: Certainly having records or possible pieces of evidence being maintained only for one year would create serious problems, or might very well create serious problems in investigations. When you think, for example, of the time it takes, sometimes, to get a complaint filed with the commissioner and then to have the investigation started, it may very well be that by the time we ask for the information, the information will no longer be available.
So that's an issue. I think it has been raised before. I think the CEO has spoken about this. It is certainly an issue that I would encourage this committee to consider because there's an apparent disconnect between what the limitation period is generally and the fact that the mandatory safekeeping, if you will, of possible evidence is limited to such a short period of time.
Senator Frum: Good morning. Thank you, Mr. Côté, for being here. I appreciate your presentation very much. We are interested in your suggestions for amendments and how to make the bill better, certainly. I will leave that line of questioning to my colleagues.
I would like to follow up on your presentation when you speak about how there is no legal principle standing in the way of the existing structure, with you working under the Chief Electoral Officer. I want to ask you why you don't see that the legal principle at stake here is the principle of independence, both real and perceived.
In the current structure, the Chief Electoral Officer has the power to hire you and fire you. Section 510 of the current Canada Elections Act says that ``. . . the Chief Electoral Officer shall direct the Commissioner to make any inquiry that appears to be called for in the circumstances and the Commissioner shall proceed with the inquiry.'' That doesn't sound like independence to me, whereas, when your office gets moved to the DPP, the protections to your independence will be much greater.
Mr. Côté: Thank you, madam. There's a lot in the question that you have posed to me. I will try to answer it in the best way possible.
First of all, I would, I think, take issue with one word you used when you said that I was ``under'' the CEO. In the way in which things actually happen, he appointed me under section 510 of the act. I am the sole person responsible for enforcing the Canada Elections Act. As I mentioned in my speech here today, he has never interfered in my investigations. That is point number one.
Point number two is that a lot has been said about 510 in its current form. I would say a couple of things about this. First of all, I note that, in Bill C-23 as it currently reads, I believe 510 would be abrogated. It would disappear from the statute book.
More importantly, yes, as you pointed out, the CEO, under 510, has the power to direct me to do an investigation. Once he has done that, it is very clear in my mind and very clear, I would suggest, from the provision itself that I decide what kind of investigation I will carry out, how I will carry it out, to what extent I will go and, very importantly, what I will decide to do at the end of the day.
Even without 510, the CEO has this very heavy responsibility of making sure that elections are run the right way, that the process is fair. If the CEO, with or without section 510, came to me, as commissioner, and said, ``Côté, I would like you to look into this because I'm concerned about this,'' this is something that I would take very seriously.
So I think that a lot has been said about 510, but in my humble and respectful view, I don't think that it goes to my independence.
The other point that I would make is: I said in my opening remarks that enforcement of the act is not something that should be done in a vacuum. As you know — and Senator McCoy has a copy of the elections act in front of her — this is a very thick, very big statute. It has a number of provisions in it, and a number of things happen in the day-to-day administration of the statute. For me, as commissioner, and for my investigators, it is important that we keep a pulse on that.
Having us close to Elections Canada helps us to be informed, in a rich way, about what is going on. That is very important.
Right now, my investigators have been within Elections Canada, and they have established and maintained contact. If we are separated, in the first months, the first couple of years, these contacts, at a personal level, that are so important will continue to be maintained, but I would ask you to think about five years or ten years on. This will disappear. There is a risk that we will operate in a way that is too distant from the actual.
Senator Frum: So you think that Bill C-23 prevents you from having that contact in the future? Would it be helpful if the language in the act was clearer about your ability to have contact with the CEO while being in the office of the DPP and being independent?
Mr. Côté: Two things on this: It is absolutely clear in my mind — and I have said that elsewhere — that if Bill C-23 should go ahead as it is in terms of separating the two offices, it is very important that there be provisions added to the legislation to make it clear that the CEO may disclose to me and my people every single piece of information that he has that may be relevant to a complaint or to a matter that he transfers to us. To me, that is key. Right now, there is a lot of uncertainty about this, Mr. Chair. I think it is incumbent upon Parliament to see to it that this is fixed.
The second point I would make is that — and it is something I alluded to in my opening remarks — if there is the perception that my office and me are not independent enough of the Chief Electoral Officer or Elections Canada, I think that the provisions guaranteeing my independence could be put into the Canada Elections Act itself, to say, for example, that any and all investigations carried out by the commissioner shall be carried out in a manner that is completely independent from the CEO and that the CEO is not to interfere and so on. That could be done, and I think that would address the perception that seems to exist that there is an issue there.
[Translation]
Senator Joyal: Welcome, Mr. Côté and Ms. Nowack. Having heard your presentation and the testimony of previous witnesses, here is my perception of Bill C-23. I feel that focus is being placed on the structural aspect of your status —whether you would be under the authority of the Chief Electoral Officer or the Director of Public Prosecutions — but there is very little concern over providing you with the tools you need to fulfill your responsibilities by giving you the authorization to obtain a court order to make someone testify, obtain the documents you want to consult, or extend the offence period for the laying of charges, so that you would have more time to carry out investigations. However, as you pointed out, this bill does not remedy the fact that an individual may refuse to cooperate, and you have no means at your disposal to force them to do so. I think this is somewhat akin to saying to the police that they are supposed to maintain order, but that they would be given no means to arrest someone. How does that make sense?
I think this bill fails to provide you with some very basic tools. If we want fair and honest elections, we have to ensure the existence of law enforcement tools, which I feel you do not have. As for the investigations you have conducted, I would say that some of them have more or less been relegated to file 13. However, I will not comment on those investigations, but rather on the general approach to your role, as I feel that is inadequate in this bill.
Emphasis is placed on whether you are independent or not. In practice, that question is secondary, as there is no precedent on which to rely to say that you are lacking independence and that this is the endemic issue when it comes to your status. That issue does not have to do with the entity your report to, but rather with the fact that you do not have the means to do your job. This is sort of how I see matters. Do you think I am out in left field?
Mr. Côté: To use your expression, Senator Joyal, I do not think you are out in left field at all. I mentioned in my comments that an issue we are encountering increasingly often in our investigations is that people we know to be holding information on one of the cases we are investigating refuse to talk to us. Sometimes they refuse directly over the telephone, when we first contact them. Sometimes they tell us that they will talk to someone and get back to us, and they eventually do with a negative response.
I talked about this, and you know it better than me. In the political world, loyalty and allegiance are extremely valued and important. Let us use the example of a young political party member we may approach to try to obtain some information. If this individual aspires to eventually run for office, their sense of loyalty, in thinking about the future, makes it easy to understand that they will tell us they prefer not to talk to us. That is perfectly normal.
Years ago, Parliament thought it would be appropriate to add a provision to the Competition Act that vests in the competitor's director the power we feel we should have — and you talked about this — to obtain that type of order. Why? Because Parliament felt it was important that healthy competition be established, that people respect the rules, and that the economic and financial operations of the country be carried out in a prescribed and reasonable way for all intents. I think Parliament would be perfectly consistent if it decided that electoral issues were at least as important as competition issues, and it concluded that those powers should be given to the commissioner.
The proposal we put forward was not for the commissioner, on his own initiative, to be able to issue orders to force people to testify. There will always be a judge between the commissioner, his investigators and Canadians to ensure that the law is enforced, and that the grounds exist and have been demonstrated to achieve that.
The second aspect is very important. Protection measures would be provided as in the Competition Act, whereby what an individual has told us, under an order to appear and testify, could never be used against them. So, without that provision, some investigations would continue to be long, sometimes very long, and some of them, unfortunately, would fail because we would be unable to get to the bottom of the matter. It would be important to provide us with the same authority that exists in five Canadian provinces. My counterparts in Ontario, in Quebec especially, in Australia and in the United States have that power, so that justifies the fact that we should also have it.
Senator Dagenais: Thank you, Mr. Côté. I have a comment to make. It is clear that Bill C-23 aims to modernize the law. A number of years ago, there were horses pulling carts in cities; today, horses are still in there, but the laws have been changed.
Section 510 of the current act stipulates that the Chief Electoral Officer ``shall direct the Commissioner to make any inquiry'', while the bill proposes, clearly with the Director of Public Prosecutions, that ``the Commissioner, on his or her own initiative [. . .] may''. You will understand that there is a difference between the two wordings. It is said that the devil is in the details, but they have to be read. What proportion of your investigations come to nothing? Can you give us an example of investigations that sometimes do not take off, perhaps following complaints of political opponents who send you fishing, who take so much time and do very little? You said that has happened to you in the past.
Mr. Côté: I will answer the first part of your question. I ask that you rephrase your second part because I am not sure I understand it. The point I would like to raise when it comes to section 510 is that research has been done over the past few days to determine how many times that provision has been used. It has been invoked once over the last seven years. In one case, the Chief Electoral Officer issued an order to the commissioner to investigate when a ballot box disappeared in Quebec during the 2007-08 election.
Senator Dagenais: You say that your work consists in carrying out investigations, which can often be very long. You have a hard time because investigations often have to do with people who work for a political party, so partisanship is involved. What proportion of your investigations may have been triggered by political opponents and were unsuccessful?
Mr. Côté: Unfortunately, I cannot provide you with any statistics or figures. But I can tell you, setting aside or ignoring the source of complaints, it has happened — and it is still happening regularly in cases that are not always very important, and sometimes in very important cases — that we hit a wall. We get to a point where we cannot go any further in terms of investigation tools. People say the Criminal Code vests in us the power to obtain production orders. However, those production orders only apply to concrete things — documents, emails, information found on a hard disk. But when someone has information in their memory — and people are often involved in more complicated actions or cases — they are not likely to leave a paper trail. So the information is basically in people's memory. You are a former policy officer, senator, and you know this better than me. So production orders are very useful, but not really in situations where people have to talk. That is another reason it is so important, senator, to consider forcing people to undergo an interview and testify.
[English]
Senator Moore: It seems we're trying to make a law as good as possible as it applies to the very fundamental activity of our democracy: the integrity and the fairness of our secret ballot system. And Canadians are aware of this.
I'm going to read to you an excerpt from an email that we all received from a lady by the name of Paula Tripp of Maple Leaf, Ontario — I love the name. She raises various points that she's upset about with regard to this proposed legislation: ``Moreover, under this law as it is written, Elections Canada will not even be able to tell Canadians whether fraud has occurred or even whether there have been complaints. In addition, the bill does not deal at all with the need to give Elections Canada power to compel testimony — the very thing which is at the heart of its failure to have gotten to the bottom of the attempt at electoral fraud that has been found by a Federal Court justice to have indeed occurred during the previous federal elections.''
She's referring to the robo-calls matter and the decision of Mr. Justice Mosley of the Federal Court of Canada back in May 23, 2013. In that decision, he said: ``I find that the threshold to establish that fraud occurred has been met by the applicants.'' The ``applicants'' were citizens who, through the robo-call system exercised by the Conservative Party of Canada, were directed to the incorrect polling station.
I can't imagine anything more heinous or outrageous than to try to take away or interfere with somebody's right to vote. As I've said before, we've got people who fought and died for — and they are buried in other countries — the right to democracy and the right to vote. I don't understand why we're even putting up with that kind of a system. But if we have to have it, you must have the power to compel. That point has been made by Senator Baker, Senator Joyal and all of the experts — and this evidence of only holding the evidence for one year and not even having the telephone numbers of the people who were called and whose lives were interrupted by this system.
What input did you have in the drafting of this bill, and what input did you have in terms of the powers you might suggestion you should have to make our system as good as possible?
Mr. Côté: I had no input. My office and I were never consulted on the contents of Bill C-23.
You raised at the beginning of your question, sir, something having to do with the ability of the commissioner to communicate with the public. In the bill in front of you is a provision that says the commissioner and investigator shall not ``disclose any information relating to an investigation . . .'' There are five or six exceptions in the legislation.
Six or seven years ago in Edmonton Centre there was a huge brouhaha in terms of whether there had been fraud in the elections. I was not in the position at the time but I know now that it was in the media and played out quite a bit. This was of such concern that my predecessor, Mr. Corbett, sent a team of investigators and they did investigate. In the end, they found that most if not all of the allegations were unfounded. At the time, he issued a communiqué to reassure Canadians saying: ``We sent our people there. These were the allegations. We spoke to people. We interviewed people and, in the end, came to the conclusion that nothing sinister had happened.'' In fact, I think he mentioned in his communiqué that nobody had voted twice, for example, and so on.
The bill before you now would prevent me, if something of the same nature happened in the future, to go out and reassure the public saying: ``You've heard about this; we've investigated; and this is what we've found. As a result, we would like Canadians to be reassured that nothing serious happened. That would be taken away from the commissioner, and I would submit that this is something that should be considered very seriously because I think it's important for the process to have the chief officer responsible for enforcement to be able from time to time — not every week, not every month — to go out and report to the public about things of that nature.
[Translation]
Senator McIntyre: Mr. Côté, thank you for your presentation. Naturally, as the Commissioner of Canada Elections you are shedding some light on Bill C-23.
[English]
Ms. Nowack, I understand that you're senior counsel, Compliance and Enforcement with Elections Canada. Is that correct?
Audrey Nowack, Senior Counsel, Compliance and Enforcement, Elections Canada: I'll explain how the legal service is structured.
Senator McIntyre: No. I just have a question for you; that's all. I don't need to know the structure. Can I ask you a question?
Ms. Nowack: Sure.
Senator McIntyre: As I understand, the fair elections act would create tougher offences for those who violate electoral laws: impersonation, providing false information to an investigator and obstructing an investigation. The bill also provides for more than a dozen offences dealing with robo-calls, fraudulent voting and so on. The bill also calls for penalties regarding strict liability to offences and those requiring intent. When I speak of intent, I speak of hybrid offences, which means the Crown could proceed summarily or by indictment.
My question has to do with the limitation period. My understanding is that under C-23 the limitation period for strict liability offences would be limited to six years; but there would be no limitation period for offences requiring intent. In the case of offences requiring intent, my understanding as a lawyer is that most statutes have a limitation period. On this issue, would C-23 be Charter compliant?
Ms. Nowack: The question we looked at had not to do with the Charter, as Mr. Côté explained the difficulty with the limitation periods. We did not want to confuse intent and no intent and summary conviction indictment. Those are two different baskets. The difficulty with the limitation period is that the clause dealing with limitation periods, and you're correct, provides no limitation period within that basket. The ones that are summary conviction, as a result of the Criminal Code, would have only six months. Then there's a different basket at the top of the section dealing with limitation periods that, you are correct, creates six years. The lack of clarity in the limitation periods globally is a difficulty.
Senator McIntyre: As I understand, the limitation would be six years for strict liability offences. It's not clear to me for the offences not providing intent.
Ms. Nowack: The indictable —
Senator McIntyre: Does that apply to all offences — no limitation for all offences or is there a different basket?
Ms. Nowack: The way it reads is one basket for which there is no limitation period, but within that basket some are summary conviction. The difficulty is that when there is nothing provided, it's six months. For what's left for the indictable having no limitation period, we haven't raised a difficulty with that.
Senator Batters: I want to clarify something with you, Mr. Côté. The Chief Electoral Officer hires you. The Chief Electoral Officer could fire you. Who evaluates your performance on an annual basis?
Mr. Côté: Nobody.
Senator Batters: How is it decided if you were to maybe get a raise or increase in your remuneration?
Mr. Côté: Under the agreement I have, the CEO provides the salary rate, which I signed onto when I got the job for a term of four years, and that's the way it is.
Senator Batters: You and the CEO came to an agreement originally about what your remuneration would be and how that salary step scale would go.
Mr. Côté: There's no step scale. It's a fixed salary, period.
Senator Batters: Do you receive raises?
Mr. Côté: No.
Senator Batters: You and the CEO originally came to the agreement about what your salary would be.
Mr. Côté: Of course.
Senator Batters: Given that not only does he have the power to hire you, fire you and decide, with your agreement, on your salary, would you not acknowledge that there's a problem with the perception, maybe not in your particular case but we're deciding on this for all cases of chief electoral officers whoever that might be, and the commissioner of elections, whoever that might be? Do you acknowledge there is a problem potentially with perception of insufficient independence as this structure exists?
Mr. Côté: I would say two things: Based on experience, I have not at all seen, as I mentioned in my opening remarks, any attempts of interfering with my work or that of my investigators since I've been in the job. Operationally, it's important for me to state that.
I also know that when my predecessor was before the committee in the other place, he made the same statement in terms of there having been no attempt by anyone to interfere with his job. That is point one.
Point two, I would go back to what I said, senator, a few moments ago. If that perception exists, the way to address and resolve the issue would be to put in the Canada Elections Act the kind of guarantee in terms of a fixed term, remuneration, no interference and so on. Put that right in the Canada Elections Act. It seems to me that Parliament would have addressed that issue and dealt with it in a way that was absolutely beyond question.
Senator Batters: Don't you agree that action, not just mere words, might be a more effective way to handle that type of perception problem. Although you haven't personally experienced that and you said your predecessor didn't either, it certainly could happen in the future.
Mr. Côté: That's why I am saying: If that perception is held by people, and I understand that people might hold that perception, then my suggestion would be that instead of moving us into a department of prosecutors, leave us where we are and put in the act the kind of legislated guarantees that would assure the independence of the commissioner and his tenure and all of these things. To me, that would be a much better way of addressing the issue, and it could allow us to work not separated from the administrators, in the same way that investigation branch for the Canada Revenue Agency works closely with the auditors. The same thing occurs with fisheries officers with the Department of Fisheries.
Senator Batters: I guess we have a difference of opinion on that. I would like to see actions rather than words.
Dealing with the DPP may well turn out to be a new situation for you on an ongoing basis. I want to provide you with a little reassurance on that.
Prior to becoming a senator, I was the justice minister's chief of staff in Saskatchewan. We worked with many officials in the Ministry of Justice quite closely, and one of those was the Director of Public Prosecutions. However, that's a very independent position in a ministry of justice; and so although technically that position reports to the Minister of Justice, the independence is a vital and well-respected, throughout Canada, tenet of that office from the minister's office. So although there is that technical reporting structure, I wanted to reassure you that, in practice, that's a very important independence position.
Mr. Côté: Let me state for the record, Mr. Chair, that I have absolutely no reason to believe that the Attorney General or the Director of Public Prosecutions, if the separation came to happen, would interfere with my investigations. My point is not that at all. I was a senior official in the Department of Justice, and I know very well how the DPP operates and how separated they are from political involvement or interference. That's not my point at all. I want to be clear about that.
My point is that this would not be a natural fit, having investigators working with prosecutors, on the one hand; and, on the other side, we would lose a lot by way of close cooperation and communications with Elections Canada, the people who, day in and day out, apply this legislation and know it inside out.
Senator Plett: Both Senator Frum and Senator Batters asked my question far better than I could ever have; I appreciate that. I will ask a different question, a short one.
Senator Moore has again suggested, as he has in the past, that this is bad because you are not allowed to compel testimony under this legislation. Have you ever been allowed to compel testimony as the legislation is written now?
Mr. Côté: No.
Senator McCoy: Just to go to the act itself, not the bill, Mr. Côté, section 510: The Chief Electoral Officer, it has been said, is obliged to direct you to institute an inquiry. It does not say what happens after the inquiry; is that correct?
Mr. Côté: Totally correct.
Senator McCoy: There are five instances in which the Chief Electoral Officer can direct you to undertake an inquiry, only five; is that correct?
Mr. Côté: Yes.
Senator McCoy: They all have to do with the machinery of the election, if I read it correctly, for example, a returning officer behaving properly, printing of ballots, that sort of mechanical device; is that correct?
Mr. Côté: Some nuances might need to be brought to this, but essentially I think the general tenor of 510, as it reads, is as you have described it.
Senator McCoy: So in an instance like robo-calls, the Chief Electoral Officer has no input whatsoever?
Mr. Côté: The way it operates is that we have essentially two sources of reasons to launch investigations. One would be what we refer to in our jargon as referrals. That comes from within Elections Canada. It is, for example, the auditors who will review the financial reports filed by a candidate and who will find that there was something missing or something wrong. They will send it to us and say, ``Perhaps you might wish to look at that.'' Or the CEO, the Chief Electoral Officer, might also do that on his own. So that's one thing.
The other is that we have complaints that we receive from the public — from candidates, MPs and senators — who write to us and say, ``Would you please look into this?''
Those are the two sources of complaints.
Senator McCoy: On the referrals that come from inside Canada Elections apparatus, including the Chief Electoral Officer, they are not telling you what to do?
Mr. Côté: No.
Senator McCoy: They're merely providing you with information that you use at your discretion?
Mr. Côté: Except for section 510, which you referred to, where the CEO may order me to conduct an investigation.
Senator McCoy: As, for example, a ballot being misprinted?
Mr. Côté: Or a box being stolen or something. But once he has made that direction to me, then the matter is out of his hands; and I, or the commissioner, decide what he's going to do with that.
Senator McCoy: So the problem that is ostensibly being fixed does not exist?
Mr. Côté: I would say that, from my perspective, it doesn't exist. As I said, it happened once in the last seven or eight years that this was done, and this was a very serious matter.
On the other side of that, even if there were no section 510, as I mentioned earlier, if the CEO came to me and said, ``Mr. Côté, would you please look into this, because I'm troubled by that?'' surely I would take a very close interest in his request and I would look into it.
Senator McCoy: But you may or may not agree, and that's entirely within your remit.
Mr. Côté: Indeed, madam.
Senator Baker: Getting back to something that I don't understand, which I raised before, why would we have legislation that allows the destruction of records, such as robo-calls, after the period of one year? With the new legislation here, you can commence a proceeding after six years when the subject matter of the proceeding arose. You can commence it in an indefinite period of time in certain cases, if somebody left the country and a year after they came back, and so on.
But we're authorizing in this bill the destruction of records after one year. Revenue Canada says six years for that same company, for the same matters that we're talking about here. They're records. As a business operation, you've got to keep it for six years, according to the Income Tax Act. You go to that person who is doing the robo-call affair and you say, ``You destroyed your written records.'' ``Yes, I was allowed to.'' ``Yes, but Revenue Canada says you have to keep it for six years.'' ``Prosecute me under the Revenue Canada Act, then, not as an indictable offence under the Elections Act.''
I can't understand why this defence is written into this bill. Who would put it in there to allow people who commit serious offences, such as Senator Moore has highlighted, and allow them the defence of destroying it after one year? Can you give me any explanation of why we would be providing that defence? Because ordinarily the judge would say, ``Well, at least there is an indication, if this were not here, that somebody was intentionally destroying records.'' But now they can do it within the law after one year. Why is it there?
Mr. Côté: I don't think I am the right person to answer that. As I mentioned before, I think it's a disconnect. I don't think this provision should be there. Other people have drafted the bill, and they would have to be asked that question to explain why they did it the way they did. Certainly from an enforcement point of view, it is not the right scheme to have something like this; there is no question about that.
Senator Frum: To follow up on that question, would a period of three or five years be adequate, do you think?
Mr. Côté: It would certainly be better.
Senator Frum: To follow up on Senator McCoy's question about section 510, it reads that:
. . . the Chief Electoral Officer shall direct the Commissioner to make any inquiry that appears to be called for in the circumstances and the Commissioner shall proceed with the inquiry.
This is a repetition of my question, but just to underscore: You must proceed. If he tells you to do it, you have to do it.
Senator McCoy: But it says in the following cases, and there's only five cases.
Senator Frum: So the CEO does have —
The Chair: Let's not have cross-table conversations. The witness cannot respond.
Senator Frum: So the CEO does have the power to direct you to make investigations?
Mr. Côté: Under 510, as it reads, quite clearly, you read it in a way that is absolutely in keeping with my reading of it, which is that, yes, the CEO has that power. But, again, I would make the point that once he has directed me — or any commissioner, for that matter — to conduct an inquiry, as the word is used there, then the commissioner decides what he will do with that inquiry, how far he will go and what decisions he will make, and there is no more role to be played by the CEO at all.
Senator Frum: Sure. I just wanted to squeeze this in. I heard that.
Clause 510.1 has to do with your ability to communicate with the public. Paragraph (2)(b) reads:
The Commissioner may disclose or may authorize any person acting under his or her direction to disclose . . .
(b) information that, in the Commissioner's opinion, is necessary to carry out an investigation; . . .
In addition, court filings, compliance agreements, charges and annual reports from you will all be made public.
Can you tell me, in that clause, where you see the limitation on your ability to communicate with the public? What's missing?
The Chair: In subclause (1), madam —
Senator Frum: Subclause (1), (2)(b).
Mr. Côté: I'm talking about 510.1(1), where it says, ``neither the Commissioner nor any person acting under his or her direction shall disclose any information relating to an investigation,'' except for the six provisions that you find in subsection (2).
I'm saying that when you look at the exceptions from paragraphs (a) to (f), you do not find the power for me to do what was done before by my predecessor when he investigated the matter in Edmonton Centre and came out publicly and said, ``This is what I have done.'' It was at the conclusion of his investigation; it was not for the purpose of the investigation that he came out and informed the public of what the results of the investigation were.
And from paragraphs (a) to (f), I don't find that power. As commissioner, I would have to comply with the law. If the law says that I may not communicate this or that, I would not — not even to Parliament, for that matter.
Senator Moore: I want to pick up on Senator Plett's question and your answer. You may not have had the power to compel, but in your brief today, you say that failure to grant this power would be a missed opportunity. I don't know how you can fully do your job with that kind of blockage or obstruction. So I want you to tell us a bit more about the importance of you having that power to compel.
Mr. Côté: I will have to cover some ground I've covered before, and I apologize for that.
The Chair: Do it in a timely way, sir.
Mr. Côté: We have hit the wall on a number of investigations, some of which were quite serious in terms of the alleged facts. We hit the wall because people who — we knew — knew things about that refused to talk to us. They refused to talk to us for all kinds of reasons; loyalty might be one of them.
I'm saying that if we do not have that power, which you find in Ontario, Quebec, three other provinces and in Australia, we will continue to hit the wall, and investigations will continue to take a lot of time. Unfortunately and regrettably, some investigations will simply be aborted because we will not be able to get at the facts.
The Chair: Thank you, sir. Mr. Côté and Ms. Nowack, we appreciate your attendance today and your assistance with our deliberations.
Our next witness is another very distinguished Canadian, appearing as an individual: Harry Neufeld, Former Chief Electoral Officer, Elections BC.
Mr. Neufeld, welcome to the committee. It is very good of you to appear today and assist us in our deliberations. I believe you have an opening statement, sir. Please proceed.
Harry Neufeld, Former Chief Electoral Officer, Elections BC, as an individual: Thank you, Mr. Chair and this committee, for inviting me.
I'm here to state my concerns about three particularly troubling features in Bill C-23, the fair elections act, that I believe merit your careful review: first, the introduction of partisan poll supervisors per clause 44 of the bill; second, the elimination of any use of the voter information card as voter address identification per subclause 48(3); and, third, the elimination of vouching per clause 52.
On the first point, for decades, federal election candidates whose parties placed first and second in the last election have been able to nominate, respectively, deputy returning officers and poll clerks. But until now, the returning officer charged with administering the election within an electoral district has always recruited and appointed central poll supervisors. Since 2006, returning officers are each chosen on merit, appointed for set terms, and required to be scrupulously non-partisan. I personally believe this is appropriate. Administrative neutrality is a fundamental principle and an internationally accepted best practice in democratic elections.
Bill C-23, by injecting new roles for local constituency associations and national political parties to help candidates appoint deputy returning officers, poll clerks, registration officers and particularly central poll supervisors, creates a partisan imbalance in polling locations that I have never seen applied in any other Western democracy nor ever heard a logical argument to justify. I believe it will feed a public perception that partisan interests control the federal voting process and will only serve to discourage belief in fair elections.
In the Neufeld report, I recommended amending the Canada Elections Act to require that returning officers appoint all elections officers based on merit, not partisanship. I also recommended these officers be appointed and recruited much earlier in the writ period. Finally, I advised taking other measures to professionalize election officer roles to improve their procedural understanding and compliance, and to uphold public trust in the voting process.
My reasons for this were multiple: first, the internationally accepted principle of administrative neutrality in the conduct of democratic elections. Partisans should be and are able via scrutineer appointments to observe closely and object formally to procedural errors at voting sites, but they should not be running the voting process.
Second, partisan nominations seriously delay overall recruitment and training. This greatly hampers returning officers who must fill and train every required electoral officer position in time for advance and regular polls.
As well, the nomination practice has waned already in that only 29 per cent of election officers appointed in 2011 came from partisan nominations. Often in Western provinces, with hundreds of positions to fill in each riding, only a handful of nominations were made.
I believe expanding partisan election officer appointments thrusts Canada backwards in the global evolution of fair electoral practices.
Regarding Bill C-23's proposed elimination of the voter information card — or VIC, as it is frequently called — as a form of address identification and removing the vouching option for eligible voters who don't possess accepted documents with both their name and residential address, these entwined restrictions are represented as safeguards meant to ensure only eligible voters get ballots and that each votes only once.
As the Minister Responsible for Democratic Reform has repeatedly quoted from my report, serious errors were made in the vouching process some 42.2 per cent of the time during the 2011 election. This is correct. The response in Bill C-23 is to eliminate vouching. There's a presumption by the minister that vouching is so fraught with errors that it carries a high risk of voter fraud. There is no actual evidence of such fraud, but the possibility of it is given as the reason for eliminating vouching; not replacing it with something more effective — simply eliminating it.
Similarly, the bill proposes that the VIC, which Elections Canada sends to each registered voter to advise them of where and when they can vote, can never be used as ID to prove residential address. The minister says the VIC is unreliable and raises the prospect of further fraud by persons that scrounge VICs from recycling and garbage bins and use them to vote fraudulently, or have others vote through voter impersonation. Again, with no actual hard evidence of fraud, it is only the possibility of misuse that the minister uses to justify disallowing VICs as one piece of acceptable ID when a person applying to vote must show two pieces.
I know others have testified that denying franchise rights is highly questionable when no evidence of such fraud exists in Canada or in any other Western nation with similar values.
The actual evidence is this: One, a recent study in New South Wales, Australia, shows duplicate voting levels simply do not justify requiring each voter to present ID to get a ballot; two, a major United States Justice Department probe into voter fraud that covered 300 million votes cast between 2002 and 2007 resulted in not a single person being prosecuted for going to the polls and impersonating an ineligible voter; and, three, here in Canada, a 2007 study of suspected voter registration fraud in the Trinity—Spadina riding, involving a detailed audit of more than 10,000 voting-day registrations, confirmed it to be virtually non-existent.
My big concern is that eliminating vouching and disallowing the VIC as acceptable evidence of address will disenfranchise many voters. This should not be treated lightly. It will bar citizens who are fully eligible from casting their legally guaranteed vote.
More than 120,000 needed the vouching process in 2011. Most were already registered and on the voter's list for the correct polling station. At the last election, of about 900,000 registered voters in the pilot study group permitted to use VICs as ID, 400,000 did so. With Canada's high mobility rates, it is projected that 250,000 eligible voters will move during the next federal election campaign. Most will not yet have identification documents that prove their new address of residence for voting purposes.
Limiting ``universal and equal suffrage'' guarantees that Canada has long supported in international treaties and has agreed to uphold should only be contemplated with very great care. These democratic franchise rights are constitutionally guaranteed. Section 3 of the Canadian Charter of Rights and Freedoms states:
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
The inclusive and unqualified scope of this clause caused Supreme Court justices to state:
The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves.
They also observed that the Canada Elections Act must balance many related and sometimes conflicting values, but the central one is the Charter-protected right to vote.
I believe your pre-study will clearly establish that these three and numerous other parts of Bill C-23 require careful reconsideration and amendment. I wish you well in ensuring that well-measured changes are made to the bill before it is passed into law. Thank you.
The Chair: Thank you, sir. We will begin questions with the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you, Mr. Neufeld, for your evidence today. It clears up a lot of misunderstanding and second- hand and third-hand information on what you actually found in your investigations.
You said clearly that as far as vouching is concerned, ``no actual hard evidence'' of fraud has been found. As far as using the voter identification card, you say no hard evidence of fraud. You made another statement clearly. You said, ``It will bar citizens who are fully eligible from casting their legally guaranteed vote.''
You quoted section 3 of the Charter. By saying that, you are saying that this proposed legislation violates section 3 of the Canadian Charter of Rights and Freedoms. May I draw that conclusion from your statement?
Mr. Neufeld: That would be my conclusion.
Senator Baker: That's interesting. Upon a declaration that a person's Charter rights have been violated to such a large degree that would be caused by this bill, but even an individual, leads the court to the second consideration as to whether this new law is of any force and effect into the future, in its application. There is a balancing act performed by our courts.
Do the salutary effects of this legislation outweigh the deleterious effects of this legislation? In other words, is there more benefit than deleterious effect? If it's found that the deleterious effects outweigh the salutary effects, the benefits, then it is declared of no force and effect in Canadian law. Looking at these provisions, do you believe that a court would probably come to that conclusion?
Mr. Neufeld: I don't presume to understand how the court would interpret Bill C-23 if it were passed as currently written. It seems to me that it would be entirely consistent with previous judgments of the court that they would say that eliminating vouching and not having some kind of workable alternative is in violation of section 3 of the Charter.
I think there is a possibility of finding an amendment, another safeguard mechanism — ideally something that is easier to administer than the vouching process — that could be used to replace the elimination of vouching and provide that final safeguard for that very small percentage of Canadians who, through no fault of their own, have problems proving where they currently live. The Charter right to vote requires that that kind of amendment be found for this bill.
Senator Frum: Thank you, Mr. Neufeld, for coming to our committee today. I want to quote something from the now very famous Neufeld report from 2013. This can be found on page 23:
Clearly the entire process for registration at the time of voting requires significant re-engineering. At the moment, it is the largest source of ``irregularities'' during federal elections — some 11.8 percent of all registration activity on Election Day in May, 2011 showed serious errors, according to the national audit undertaken for this review. That represents 0.9 percent of all votes cast on Election Day in the last federal election. Less abstractly, it equals 114,693 voters potentially having the validity of their votes put in question. For voter registration alone, this is an average of 372 ``irregularities'' per electoral district.
I would like you to comment about that statement in light of your recommendation that we maintain the voter identification card as a method of identification.
Mr. Neufeld: It is not an identification card.
Senator Frum: Voter information card. I stand corrected. Thank you.
Mr. Neufeld: People who are required to register at the time of voting most frequently are already registered, but they would not have received their voter information card because many Canadians change their addresses every year.
When I was Chief Electoral Officer of British Columbia, the information we had from Statistics Canada was that it was between 18 and 24 per cent per year mobility. Nationally, it is about 13 per cent. So it is very challenging to have the voter's list always up to date.
The problems with voter registration at the time of the election and the series of irregularities made within have not been a topic of debate. There are twice as many irregularities with voter registration as there are with vouching. Yet, the minister doesn't seem to want to eliminate voter registration at the time of voting; but he very much wants to eliminate vouching.
If you have read my report from beginning to end, you will know that what we really need in this country is a new voting services model. We need to move away from having so few election officials responsible for absolutely everything that has to do with voting services. We need to divide the functions out. We need to have people who are specialized and highly trained and very competent dealing with the complex exceptions. Vouching is certainly one of them. Registration is another one. There are 15 others. That has to happen sometime in the near future. To me, it is unfortunate that that hasn't been a part of Bill C-23 and a part of this debate at all.
There is no question that voter registration has problems and it should be improved. If it were, the reliability of the voter information card would be higher and there wouldn't be this issue of so many cards being left in the lobbies of apartment buildings in some of our major cities, which is the situation that causes a lot of concern for people as it opens up things for potential abuse.
Senator Frum: Given the high percentage of irregularities with voter information cards —
Mr. Neufeld: Not with voter information cards, I'm sorry, but with registration at the time of voting. Those people don't have cards and that's why they're in the line-up to register.
Senator Frum: With the voter information cards, 1 in 6 or 1 in 10 is incorrect?
Mr. Neufeld: You would have to check with Elections Canada on the rate of absolute accuracy at the point in the election where they send out those cards. But I would say you're right: The percentage might be as high as 10 per cent of those cards that go out and they are sent to addresses where people no longer live.
Senator Frum: Does that strike you as a high amount?
The Chair: Senator Joyal is not here, so we will move on to Senator Plett.
Senator Plett: Two things: One, you're very opposed to eliminating vouching, even though we have some 39 pieces of identification that allow people to show who they are and where they live.
Mr. Neufeld: If I may interject, the problem is not so much with identification. Canadians generally agree that providing identification before you vote is reasonable. The problem is for a very small percentage, and for some it's just because they've moved, who have problems with acceptable identification that has their current address. It's not an identity problem.
Senator Plett: They have problems, sir, but it is not impossible — having a problem and making sure you have the identification. This bill is being discussed a year and a half prior to an election.
People have an opportunity now to assure themselves of this identification. My question is: I don't support the voter information card as being proper identification but if that card stayed, would you then support the elimination of vouching? Because you seem to draw some sort of correlation between those two.
Mr. Neufeld: The correlation is that they're both being eliminated as features in our system. I fundamentally believe that Canadians who meet the eligibility criteria have to be given some kind of provision so that they're allowed to vote, even if they don't have documentation that proves where they currently live. They don't have it for one reason or another, which includes a lot of seniors in long-term care facilities. Maybe they just moved and for that reason they have no official documentation in their hands yet that proves their current address. There could be some other circumstance in their life where they live at the edges of society and don't require identification in their normal day-to- day living, even for official business. Even if you expanded the 39 to 390 pieces of ID, they simply wouldn't have something that would prove their current address — not a post office box — their current residential address that indicates clearly where they live.
Senator Plett: Well, of course the attestation is a form of vouching. That, of course, is there for many of the people you've mentioned, such as a seniors.
You said there is no proof of voter fraud. A few elections ago in the riding of Churchill River in northern Saskatchewan, one polling station had 108 per cent or 105 per cent of eligible voters show up. I find it difficult to understand how that happened. When the ballot boxes were looked at, 100 per cent of the ballots were cast for one person.
Mr. Neufeld: You have to make a distinction between eligible voters and registered voters.
Senator Plett: Many of these people were vouched for. When you say there is no voter fraud, would you not at least give us the benefit of the doubt as to the perception of voter fraud when 108 per cent of the people vote for one person and many of them were vouched for? Would you at least say that there is the perception of voter fraud in that case?
Mr. Neufeld: I would not agree, as an election administrator, that there's a perception of voter fraud. I would say there is a perception of administrative problems.
If you have a brand new subdivision and the first five people in the subdivision are registered to vote and the other 300 aren't but they want to vote and they all line up and get registered, you're going to have 300 per cent of your eligible voters voting, according to your calculation. It happens.
[Translation]
Senator Dagenais: Thank you, Mr. Neufeld. Of course, I understand your arguments, and I understand that you are mostly bothered by the famous vouching issue. However, it must definitely be ensured that those who are voting are clearly identified. I think the goal of Bill C-23 is to modernize the act. Legislation should be modernized and harmonized with the current trends.
I will repeat what I said to other witnesses who have appeared before us. A few years ago, we did not need to identify ourselves before flying. Today, as you know, we have to identify ourselves, if only to obtain a boarding pass. As you saw when you came to the East Block today, you have to provide identification on your way in. So imagine arriving in the Parliament building and having to choose members of Parliament inside the building. As a minimum, people should identify themselves when they want to make that selection.
Voters' addresses are often a topic of discussion. Strangely enough, when it is time to vote, the addresses seem to be an issue. However, people who receive old age pensions, social assistance, employment insurance or tax credits have a fairly easy time coming up with addresses. Homeless people have been discussed at length, and I can tell you that, last weekend, it was being said that a homeless individual should provide an income tax return and, if they have no address, they should provide that of the place where they eat.
I would like to hear your thoughts on that, since the bill is supposed to be modern. The idea is to modernize the law, and not to impose certain conditions or prevent democratic rights from being exercised. It is a matter of ensuring that elections are held transparently.
[English]
Mr. Neufeld: I agree with you that the Election Act needs to be regularly reviewed. Society changes and societal expectations change. I do not, in itself, have a problem with eliminating vouching, providing you put something else in place that acts as that final safety net for the small percentage of people who are eligible to vote but for some reason do not have the ability to provide documentation that proves both who they are and where they currently live as a residential of address. It's not a great percentage, but if you eliminate this, I think you are eroding the foundations of our democracy.
I believe that you could come up with another kind of provision. In Manitoba, they have a very elegant way of dealing with this problem. It's basically the same requirements as the federal Election Act has. People have a piece of ID that shows their name, address and picture. It could be issued by the federal government, provincial or territorial government, or local government. If you don't have that, then you need two pieces of ID, which in combination identify who you are and where you live.
The third one, instead of vouching, if you don't have a combination of two pieces of ID that show where you live, then you must make a written declaration that this address is the address at which you live. Obviously, that could be subject to a penalty if it's false, which could be reviewed following the election to see whether people were going from one electoral district to another or one polling station to another within an electoral district and voting multiple times. I think we would find that very few people would attempt to do that.
I experienced spending hundreds of hours looking at allegations of fraud. I was involved with this in the 1980s when the whole idea of registration at the time of voting was new in British Columbia and there were allegations that busloads of people were going around from constituency to constituency, and they were voting and swinging the vote. It's a story I've heard in Africa, Australia and Europe.
It just doesn't happen; there's never any evidence. We didn't find any evidence either after thousands of hours and many hundreds of thousands of dollars expended trying to determine whether there was any actual duplicate voting.
I think you're right: The Election Act needs to be updated. But I think there are some simple solutions that could be used as alternatives to simply eliminating vouching.
On the issue of the voter information card, maybe it doesn't need to be a postcard anymore. Maybe it should be a letter or maybe it should be a card in an envelope.
I looked it up this morning. Opening up somebody else's mail is a $5,000 fine and a jail sentence in this country. I think that would really slow people down in saying, ``This is an invitation to go and use this.''
Even if it is an invitation, how are you going to get another piece of ID that you need to prove you're that person? Are you really going to forge something else from an official list so you can get one more vote in? If you're going to do that much work to defraud an election process, there are more efficient ways to be effective.
I don't think it's in the Canadian value system to do that kind of voter fraud. I've not seen evidence, although I've heard political rumours of it for the last 33 years that I've been in this business.
Senator Joyal: Thank you, Mr. Neufeld, for your report. I think it will remain as an important document for anyone who wants to understand the contemporary challenges that the electoral system in Canada is facing and how we can cope with those challenges.
I am of the opinion that the vouching system is more or less a safety wheel. The four wheels are really identification with the proper documentation. I have no problem with that. Not only do I have no problem, I think it's a fair approach to recognize the right to vote.
But if that approach doesn't meet the situation of one person — and that's what I want to ask you — normally those are people who have difficulty with what I call administrative red tape of all sorts, because of their level of education, because of the particular conditions where they live, because of their age, and so on. I think you could elaborate on that on the basis of your experience.
It seems to me that if we fear or we entertain the fear that the vouching system might be used to thwart the election results, we could improve the vouching system; we can tighten it. For instance, we can request that the person who acts as the voucher be sworn in and write his address, because that person is in the same electoral district. Normally it is two identification papers or identity capacity to be proven.
So it's not anybody who knocks at the door and says, ``I know this guy.'' There is an administrative obligation, in my opinion, that can be strengthened, that will maintain the opportunity for the vouching system to exist, to alleviate the condition of those people who find themselves in a social condition whereby they cannot meet the regular request of proving their identity or the address where they live.
It seems to me that with a small exercise of intelligence and knowledge of the system, it would be easy to strengthen the system and prevent that fear of fraud that people seem to entertain when the vouching system is raised as an issue.
Mr. Neufeld: I want to correct you on one point, which is that not only do you have to be in the same electoral district if you're going to vouch for somebody, you have to be in the same polling division. If you live across the street, you may not be in the same polling division. It's very restrictive as it is.
My concern, secondly, is that if you are going to amend the vouching procedures, please try to do your best to make it simpler to administer, not more complex. If there's another alternative to vouching that would be equally effective and is simpler to administer, I think that's preferable, simply to increase the compliance levels of these one-day election workers who are doing their best. They work a very long day. It's their first day on the job. Things simply need to be as straightforward and sensible as they possibly can be so that doing the job wrong is very difficult.
For us, looking at this, it's easy to say, ``Let's just put in one more provision for there to be an oath that has to be signed,'' and so on. But for the election worker who has a lineup of 25 people waiting to vote, who are clearing their throats and tapping their toes, and they've got somebody in front of them who needs to be vouched for, adding another step in the procedure is not going to help compliance levels. It needs to be streamlined; it needs to be simplified; it needs to be made more efficient, if at all possible, while still being very effective in ensuring that our electoral system's integrity is maintained.
Senator Joyal: I would like to come back to your first recommendation, namely, the introduction of partisan poll supervisors. You mentioned in your brief that it doesn't exist in any other democratic system.
Mr. Neufeld: The idea that the poll supervisor is a partisan for the incumbent party and candidate does not exist anywhere else that I've been, or that I've read about or heard about, anywhere on the globe.
Senator Joyal: What in your opinion is the benefit of it? Will it make the voting easier? Will it make the system work smoothly? Or is it just the benefit accruing to the party who won the majority in the previous election?
Mr. Neufeld: In terms of benefits to the administration of the election, I fail to see any. I can only see partisan benefit.
Senator Joyal: So in your opinion there is no advantage to introduce that except to give the opportunity for somebody from a party to get the money and to be in a position to direct the voting day?
Mr. Neufeld: I've heard stories that political parties seem to think that being able to have their candidates appoint supporters to these positions is some kind of a benefit, but these are not well-paid positions. This is not a job that's going to make you friends. This is not like becoming an ambassador to a pleasant country.
This is a very long day, minimum 14 hours, no breaks whatsoever. Voting has to stop if somebody has to go to the bathroom. Being a poll supervisor is not a piece of cake either. This is not something that should be regarded as a carrot to be dangled in front of political supporters.
I would much rather see a system where there were incentives for being scrutineers. I have no problem with the partisan presence in the voting place. I think it's healthy. I think there should be full transparency for everything except for how people mark their ballots. I think the procedure should be scrupulously followed by the scrutineers as well as the voting officials. I think they can help to enhance the quality of our system. I would rather see scrutineers required to be trained and paid than I would having poll supervisors be partisans appointed by the incumbent candidate.
Senator McIntyre: Thank you, Mr. Neufeld, for your presentation.
In your summary, you raised three concerns. I'm not going to delve into those concerns, as other senators have already covered that ground. However, there is another issue that I would like to raise with you.
Under the Elections Act, if an MP breaks the rules in order to get elected, obviously he can't sit in the House of Commons. What transpires afterwards, if I understand well, is that the CEO then informs the Speaker, and the MP can't sit until the matter is resolved to the satisfaction of the Chief Electoral Officer.
With the new bill, the MP can go to court and ask the judge to rule before the CEO seeks suspension. The MP has only two weeks to apply, as I understand the act, and then the judge has to act without delay. But, obviously, you can't tell judges what to do.
As a former Chief Electoral Officer, are you comfortable with this amendment, the idea of an MP being given the opportunity to go to court first as opposed to having the CEO suspend him by going to the Speaker?
Mr. Neufeld: Having been in a position where these kind of issues need to be dealt with, I know chief electoral officers across the country, and certainly the Chief Electoral Officer of Canada, would not take any such action lightly, and I think due process should be followed.
If there is this issue that there are sufficient grounds for the suspension to happen, I think the process should be that that suspension happens. If there is a court process to determine whether that was an appropriate decision or not, it should be possible to take it to the courts.
Senator McIntyre: Surely there would be no problem with the MP first going to court.
Mr. Neufeld: To be honest with you, I haven't studied that aspect of the bill, but I think there needs to be due process. Certainly the administrative decision of the Chief Electoral Officer should be something that could be appealed to the courts to ensure that it is absolutely sound and with merit.
Senator Moore: Thank you, Mr. Neufeld, for being here.
I pointed this out the other day. When you were talking about the irregularities that happened, you said they were due to systemic errors made by election officials. That does not equate with vouching, and I want to make that point.
I find it interesting that this bill wants to rid us of the practice of vouching, and there's never been fraud found in the vouching practice and I think, by the way, Canadians are used to receiving that card. I think they'll wonder what's going on if they don't get it the next time. There's never been fraud proven with regard to vouching, yet the bill does not take a hard line on robo-calls, and fraud has been found in that process. What do you make of that? What do you think of that contradiction?
Mr. Neufeld: I have found it interesting that the focus has somehow been placed on voters being the source of a lot of fraud in our electoral system, when I know there's been a great deal of concern on the part of Canadians about the whole robo-call situation. The investigation has seemingly been stalled in so many ways and the inability to get to the basis of it.
I find it interesting and troubling that we don't seem to have the answers to that part. I think Bill C-23 takes some measures to prevent that in the future, but it's an area that perhaps could be enhanced as well.
Senator Moore: Do you want to comment on the aspect of the commissioner not being granted the authority to compel parties to give testimony? Have you thought about that?
Mr. Neufeld: I know that many chief electoral officers across the country do have that authority, and I don't see why it's not available federally.
Senator Batters: In response to Senator Moore's question that he just posed about the robo-call situation, I wanted to advise you, in case you weren't aware, that former Chief Electoral Officer Jean-Pierre Kingsley testified before the House of Commons Procedure and House Affairs Committee that the robo-call situation would not happen with the new measures we are putting into place. Given his vast experience with the federal electoral realm, I think that's pretty convincing testimony in that respect.
Also, my colleague Senator Plett mentioned the situation in Desnethé—Missinippi—Churchill River, Saskatchewan, a federal riding in 2006. I wanted to draw a couple of other facts to your attention with respect to that. That was an election in which Conservative MP Jeremy Harrison lost to Liberal Gary Merasty. Senator Plett referred to the poll and 108 per cent of the ballots in one particular poll. A ballot box showed up three and a half hours late, after we all went to sleep. My husband was a member of Parliament at the time. We all went to sleep seeing that Jeremy was several hundred votes ahead. That ballot box came back three and a half hours late with 100 per cent Liberal vote in the box.
Former Commissioner Corbett testified at the House of Commons PROC committee that a TV raffle had been held by a First Nation band for all those who had voted for that particular poll.
Given those additional facts, does that not seem to raise serious concerns about that issue?
Mr. Neufeld: Certainly the issue of giving away anything in return for voting is inappropriate and illegal. If that was not part of the investigation, it should have been.
The issue of more than 100 per cent of people voting gets back to this issue of three statistics you have to be concerned with, and you can't confuse them. There are eligible voters, and that's the whole number of people who can vote in any community and any poll. There are registered voters, and that's the number of people registered to vote. Then there are the ones who actually show up to vote. Sometimes that can be more than 100 per cent of those who are registered, and there's nothing illegal about that.
It seems anomalous, and I understand why there are concerns. But people can register at the time of voting, and more people can register at the time of voting than were registered for a poll initially. It doesn't mean that they voted illegally.
Senator Batters: I understand that.
You were speaking about your preference for the retention of voter information cards. Again, I'm not sure if you had heard about this particular testimony, but when we had the current Chief Electoral Officer, Marc Mayrand, testify before us, he was saying that voter information card errors, 10 per cent of the time, with 23 million voters, equates to 2.3 million errors on those cards. Even with Elections Canada's significant efforts with targeted revision, it still only reduced it to a 7 per cent error rate, which is considerably more than 1 million voters.
Mr. Neufeld: Compared to what? Give me another card or another piece of identification that's more current.
Senator Batters: We'll give you 39.
Mr. Neufeld: That is more current. I don't think any of those 39 is necessarily more current when somebody moves and changes their address. That's the problem.
Senator Batters: Voter information cards can also not be current. I gave the example earlier in these hearings that after my husband and I had been in our home several years, a federal election came up and we received five voter information cards in the mail: one for him; one for me; one for me with my maiden name, which I had never had at that particular address; and one for each of the two previous owners of that home who hadn't lived there for several years.
Voter information cards, I wouldn't think, are necessarily all that current, given that a large percentage of them are taken from income tax returns, which may be up to a year old at that point.
Mr. Neufeld: Absolutely. Currency is a huge challenge. It's not just a challenge for voter information cards; it's a challenge for voter registration. This is the big challenge that Canadian election administrators, who are managing permanent registers of voters, have to deal with.
My recommendations were to improve the currency of the voters' list before you went into an election, especially when you know the fixed date of an election.
I completely concur with you that they're not perfect. The problem is there's nothing else out there that's perfect either, and you have to prove where you live.
There's a small percentage — not a huge percentage — of people who are going to be challenged to do that. I think you have to have some way of accommodating them so their franchise rights are protected but, at the same time, the integrity of the system is also protected.
That's the challenge this committee and the Procedure and House Affairs Committee have. I don't think you can just sort of eliminate that last safety net, which we call vouching, and not replace it with something else that's as effective or more effective.
Senator Batters: I would submit to you —
The Chair: I'm sorry. We have time for Senator Baker and Senator Frum, if they both have a brief question, singular.
Senator Baker: I would like to pass to Senator Joyal for one question.
Senator Joyal: Mr. Neufeld, on page 4 of your brief you referred to something that I had not thought about when trying to understand the vouching system and its implications. I will quote the penultimate paragraph:
With Canada's high mobility rates, it is projected that 250,000 eligible voters will move during the next federal election campaign.
It means that that person might not have a paper with the right address. They might have a paper with an address that doesn't reflect where they will be when they vote. The objective of having, as you said, a safety net is very important for those people who will be moving during the election. Those are your figures. Can you comment on them, page 4, second to last paragraph?
Mr. Neufeld: This is part of the reality of Canada with our mobile population. Most people move between late spring and late fall. In the winter months, they don't move so much. There are statistics that Statistics Canada can provide and has provided to election management bodies across the country on request that indicate how many voters you can expect to move in any particular month. It is an astounding figure. The reality is that these people do not lose their right to vote simply because they have moved and there happens to be an election campaign under way.
With the elimination of vouching and with the elimination of the voter information card as a method of identification, even if they have been very diligent and changed their voter registration, walk into the voting place with a passport and with their voter information card, they will be denied the right to vote if Bill C-23 goes through as it is.
Senator Frum: Can you explain to me the procedures in place by Elections Canada where, after an election, there have been vouched ballots, they get counted? Is there any auditing, any post-election scrutiny of the people who did the vouching or were vouched for, any follow-up of any nature?
Mr. Neufeld: That's an excellent question.
To my knowledge, my report on compliance was the first time the whole issue of vouching had been looked at in really finite detail. The way the rules work in the Canada Elections Act now is that all of those poll materials from each of the hundreds of thousands of polls in the country get sealed up, and unless there is a court order, as there was in the Etobicoke Centre case, or the Chief Electoral Officer has a compelling reason to open them, they cannot be opened.
Having 1,000 of them opened in order to have this compliance review provide the kind of statistical base that it required, in my design, was extraordinary. It had never happened before. Elections Canada didn't know what percentage of people needed to vouch in order to vote because there was no way of knowing before this.
Unless there's a complaint, unless there is something that requires that these papers be resolved, nothing ever gets looked at and there is no follow-up.
Senator Frum: It is done entirely on faith, 100 per cent on faith and trust?
Mr. Neufeld: Our system in Canada has been based on trust since Confederation, primarily. It has changed since 2007. We have introduced the requirement of having identification in order to vote, as a major change in the integrity requirements, but perhaps other things need to keep up.
The Chief Electoral Officer has publicly committed that he will take a recommendation I made, which is to look at the compliance levels following each election hereon and report publicly on them, so you will be getting a report, if vouching remains, whether it has improved, and whether voter registration has improved in terms of the compliance levels and the avoidance of irregularities.
The Chair: Thank you very much for your appearance here today, sir. Your contribution to our deliberation is very much appreciated.
Mr. Neufeld: Thank you.
(The committee adjourned.)