Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8, Evidence - April 30, 2014
OTTAWA, Wednesday, April 30, 2014
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:17 p.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 afternoon. 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. This bill proposes amendments to numerous aspects of Canada's electoral law. To date the committee has held six meetings on this study and has heard from 21 witnesses, including the Minister of State for Democratic Reform, the Chief Electoral Officer, the Commissioner of Canada Elections, along with many experts, academics, political parties and other stakeholders. The committee also received a number of written submissions.
On April 15, this committee tabled an interim report that contained a number of recommendations for amendments to the bill. You can find copies of the report, along with the committee's schedule of meetings, on the sen.parl.gc.ca website.
For our first panel of witnesses this afternoon, please welcome Gail Lynch, Returning Officer for Ottawa Centre, and Brigitte Giesbrecht, Returning Officer for Provencher.
We will begin with Ms. Lynch's opening statement, followed by Ms. Giesbrecht.
Gail Lynch, Returning Officer for Ottawa Centre, Elections Canada, as an individual: Thank you, Mr. Chair and members of the committee, for the opportunity to appear before you today. I wish to focus on the operational aspects of the bill — items which affect returning officer offices, candidate representatives, poll officials and voters.
The first item is advance polls. The change from three to four days is good for voters. It may have poll location and staff implications. Procedures for advance polls have become complicated for poll officials with this piece of legislation. Just reading the legislation is difficult and the procedures will become the focus of training in the office rather than assisting people to vote at the polls. We want to see procedures for poll officials simplified rather than adding to them.
In relation to the central poll supervisors, it is my understanding the requirement to have a CPS appointed by party number one is being amended and I welcome the change.
With respect to the names provided for DROs, poll clerks and registration officers, it is my understanding that if the candidates do not provide a sufficient number of names, we will need to contact the local association and the party. We normally have one primary contact within each campaign. I would personally feel uncomfortable approaching anyone other than the one person who has been identified as my contact.
Identification: I am also pleased vouching will remain. I wish voter information cards were being included as acceptable identification. I personally feel uncomfortable when I have to ask long-term care facilities to be involved with the attestations. Their business is not elections but rather looking after their residents. They do it willingly, but VIC cards would help. I also wish the legislation included a harmonization of all identification requirements.
With respect to special voting rules within the returning officer's office, having candidate representatives on site throughout the election has space implications for the RO office, potential distraction for staff and potential discomfort of voters.
Candidate representatives moving from location to location within an electoral district seems pretty straightforward, but in my mind the CPS or designate will need to have each rep sign in whenever they change locations. The central poll supervisors are responsible for knowing who is in the poll, and if something happens they will be accountable.
Record of identification of voters who have voted is the introduction of another official elections document. What was originally a document to help candidates and to minimize disruption for poll officials has now become a major undertaking for poll officials on election day and the RO office post-election day.
Candidate representatives and voter identification have the potential to cause voter discomfort, from a privacy aspect, and puts the poll officials in an uncomfortable position.
On Elections Canada outreach, as a former teacher, I am pleased the work Elections Canada does with schools will continue. I do believe this should not be limited to those not of voting age, but include the 18-to-35 age group. We are trying to increase voter turnout, and if students are not exposed to civics in high school there is not much opportunity to become familiar with voting. If they do not vote when they are young, i.e. the first election in which they are eligible to vote, the chances of them changing that behaviour as they age are not good.
In concluding, I would like to speak to the future. Voters have expectations about voting. Many have been exposed to some form of electronic voting, either municipally or provincially. As a riding with thousands of registrations at the polls on election day, I would welcome technology at the polls. This legislation is silent on that.
Thank you and I look forward to the discussion.
The Chair: Thank you.
Ms. Giesbrecht.
Brigitte Giesbrecht, Returning Officer for Provencher, Elections Canada, as an individual: Thank you for the opportunity to present on Bill C-23 as a returning officer for the Electoral District of Provencher. I would like to voice my concerns with some of the recommendations presented in Bill C-23.
In recent years we've seen many amendments made to the Elections Act that proved to be beneficial to electors that would otherwise have difficulty exercising their right to vote. Some of the recommendations in Bill C-23 would force electors to leave voting stations without having cast a ballot.
Bill C-23 proposes to eliminate the ability to vouch for another elector. In my opinion this would be devastating to many electors who rely on this last resort solution when they do not possess proper identification. There have been times when a husband has vouched for his wife because all the bills are under his name and his wife has no driver's licence. I have been witness to this myself.
We have also had instances when an elector comes to vote with what they think is correct identification to be told they need to come back with proof of physical address. That elector has gone to the trouble of walking or driving to the polling place, which could be many kilometres away in some elector districts. Vouching is the only other way this individual can vote unless they come back to the voting station, which is not likely.
It is not uncommon for the returning office to get a call from an angry elector. In most cases the elector has voted by means of vouching but was not happy that he or she had to be administered the oath. The system is not perfect, but the elector gets to vote at the end of the day.
I believe that removing vouching from the electoral process before having a solution in place for those without ID would not be a welcome change by electors or the staff of Elections Canada who will be expected to answer to complaints about such amendments.
The use of the voter information card at designated voting stations only needs to be considered as a step in the right direction. As a returning officer, I was given the opportunity to identify locations that would benefit the use of the voter information card. Elections Canada has allowed electors from personal care homes, long-term care facilities and Native reserves, just to name a few, to use this service. During an electoral event, revising agents are asked to gather information directly from electors that will be voting at these stations. We know then that the information on the newly revised voter information card is correct. The use of the VIC as one piece of ID really helps in these situations. Most of these electors do not have much for identification.
My opinion is that within controlled guidelines the VIC should remain as one of the pieces of identification for these electors but should not be used by the general public, as we do not have a 100 per cent accurate voters list. Lists of the voting stations using this type of identification are available to the candidates through the returning office.
One more point of interest to me is the appointment of central poll supervisors by political parties. In my opinion this should not be added to the Elections Act. The appeal of Elections Canada is that it is an independent organization that is committed to maintaining a non-partisan service to the electors. If political parties are to staff the polling places, Elections Canada will be viewed as partisan no matter what the Elections Act says.
Electors are basing their opinions on what they see happening at the polls. I request reports from my central poll supervisors to keep me informed of any matter that adversely affects or is likely to adversely affect the proceedings. I also ask that they include election official evaluations. I need to know that without a doubt my central poll supervisors are making their assessments without bias.
I think that returning officers should have the authority to choose, with the help of recruitment officers, those who will be representing Elections Canada and conducting themselves in a non-partisan manner.
I believe that the appointment of all election officials should be merit-based whenever possible.
Based on the opinions that I have shared with you in this presentation, my hope is to give you reason to reconsider the amendments suggested in Bill C-23.
I'm happy to answer my questions you have for me that relate to me as a returning officer.
Senator Baker: Thank you to the witnesses appearing before us today.
Let me ask you a general question. Prior to 2007, my understanding was we didn't need any of these pieces of identification at all. My understanding, if my memory serves me correctly, is that you would do up a preliminary voters list and then a revised voters list. You would have people going door to door wherever people lived and then you'd do up a final list and there would be three separate lists. Do you still do that today? Under the old system, prior to 2007 — we'll say that's the old system — if you weren't on there, you swore that you were in front of somebody, with your hand on the Bible. Am I correct in that analysis, and am I correct that there weren't any major problems with that procedure prior to 2007? Do you go back that far?
Ms. Lynch: My first election was 2006, so we're just on the edge there. As you were speaking, I was trying to remember in that first election, because I know the whole thing with ID. The provincial people had introduced ID, and I remember thinking at the time we figured that some of the kinks would get worked out and that by the time the next federal election would come around that people would be used to the ID, the requirements and so on.
I guess as time has gone on, people have felt that they needed to have the requirements. What you are referring to in some of the cases in terms of knocking on doors, that's part of what we now call the targeted revision. While we don't do the entire ridings, we will do places where we have identified a high turnover.
Senator Baker: You don't do a preliminary voters list anymore.
Ms. Lynch: There is a preliminary voters list.
Senator Baker: You don't do a revised voters list any more.
Ms. Lynch: Yes, we do.
Senator Baker: You do now what you did before.
Ms. Lynch: Yes, but it is limited. It is targeted. We will do seniors' residences. In many cases, that's why the VIC — if you have a senior citizens residence, people have gone in there and have been revised, so you have current information. When you have that current information, you send out the VIC because it then tells them where to vote, but you have also ascertained that that person actually lives there because, within the election period, you have been there and have seen them.
Senator Baker: For ordinary Canadians who normally vote in a small community in a rural area in Canada, not an urban area, I imagine they're the same. You would still go door to door. You don't do that anymore. When was that thrown out?
Ms. Giesbrecht: I don't know if there ever —
Senator Baker: The preliminary voters list —
Ms. Giesbrecht: I don't know if there was door to door. Since I have been involved, there has not been. The preliminary list is provided to us by Elections Canada. Returning officers are not responsible for creating that list. We get this preliminary list.
Senator Baker: Does Elections Canada prepare the list?
Ms. Giesbrecht: Yes.
Senator Baker: Of every single voting Canadian that they know of.
Ms. Giesbrecht: Right.
Senator Baker: They do this assessment, this preliminary list.
Ms. Giesbrecht: The preliminary list is provided to returning officers by Elections Canada.
Senator Baker: All of these things we're talking about now, all of this positive ID, that is relatively recent. Do you know of any cases of mass fraud while you have been working at polling stations, that Canadians are lying and telling all the fibs?
Ms. Giesbrecht: Not that I'm aware of.
Senator Baker: You're not aware of any of that?
Ms. Lynch: Nor am I.
Senator Baker: I see. Thank you.
Senator Frum: Thank you for being here today.
As we know from the Neufeld report, he cited in the last election on registration day that there was an 11 per cent error rate — sorry, of same-day registrations. We know there was a 42 per cent error rate with vouching. Mr. Neufeld has been very clear. He doesn't see this as evidence of fraud, but he has said that he sees it as evidence of poor training by poll clerks. One understands why that would be because poll clerks in general are good citizens who are not quite volunteering their time, but pretty close to it. They're acting out of a civic duty, and they're good people. But there's a very, very high error rate.
My question to you is about the training of volunteers — they're not volunteers because they get paid, but of poll clerks on election day. What measures might you see are possible to improve the education process?
Ms. Giesbrecht: I don't believe there's a problem with the training. I think that the problem is that there's quite a bit of paperwork to fill out, and people aren't likely to fill out every box. As soon as there's something missing, it is hard for that information to get put into the system. If you look at any of the forms, there could be problems, because the people are there for one day, as you mentioned. I see a high error rate as well. It is there. Those people are trained well, but they're rushing through because they don't want people to wait. If you have impatient electors, you try to push it through and you will make mistakes on your paperwork. I agree with the high rate of errors, but I don't think that's a problem with training. I think it's just there's so much to fill out on a form.
Senator Frum: What has to change?
Ms. Giesbrecht: I think it needs to be simplified. I don't know how. That's a process. I don't think there are any issues with fraud. You said it was 11 per cent, is what they figured?
Senator Frum: He said it was an unacceptable rate of error in his report. He said if we don't fix the rate of error, it will call the results into question. While he won't say that it means there's fraud, he actually has no way of really knowing that. What he can say with certainty is that the rate of error is very high.
Ms. Giesbrecht: The biggest problem, then, in that case, is the voters list has to be more complete and has to be better, because why are people registering? They're not on the list. Why are they not on the list? There are problems with the way they're getting on the list. In rural Canada, we could have up to three addresses, so if somebody's address isn't registered on the voters list, it becomes a problem. The wrong address might be on there.
Ms. Lynch: I guess the thing is that people are dealing with the public that they're not familiar with doing on a day-to-day basis. They're there for 14 hours. They are trying. What happens over time is that people keep adding things that they need to do as part of their job. You know, it is like anything else. People add, but they never take away. At a certain point, they can only absorb so much. Things are thrown at them at the last minute. For example, in the last election — and it was the right thing to do, but it was a part that people had to figure out how to deal with — there was the whole accessibility issue and the paperwork that was involved with that. So the central poll super was very involved with making sure that everything was accessible, which was a good thing, but they were focusing on that rather than being able to help the DROs and the poll clerks if they had questions.
There are a lot of demands being put on them. People are all trying so hard to do a good job when they come to training, and often I will say to people, "After you do this training, this is going to be a hard, long day. Many of you have done this before, but stop and think about it. There's no shame in telling us that you don't feel you're going to be up to doing the job. We would rather you tell us now than not show up on election day." That's the conversation that we have with them, because so much is put onto them. That's why, from where I stand, if we can simplify it and be able to put onto DROs a certain type of task, and the poll clerk — and that's what Neufeld was saying, to get very task-specific. I think he's moving in the right direction when he makes that recommendation. I think that would go a long way here.
Senator Moore: Thank you, witnesses, for being here.
I want to go back to the point raised by Senator Frum. I am looking at Mr. Neufeld's report and the percentage that she quotes. He says:
Serious errors of a type the courts consider irregularities that can contribute to an election being overturned were found to occur in 12 per cent of all election day cases involving voter registration . . . .
Not all voters.
Senator Frum: I said that.
Senator Moore: I thought the witnesses thought you were talking about everybody who voted.
Ms. Giesbrecht, you looked a little surprised when she said that.
Ms. Giesbrecht: No. I read the report myself.
Senator Moore: You understood that.
Ms. Giesbrecht: The 42 per cent was what was —
Senator Moore: Of cases involving vouching, yes.
Overall, the audit estimated that irregularities occurred for 1.3 per cent of all cases on election day. Twelve million people voted, so the numbers were minimal.
I want to talk about the voter identification card. In your experiences, did voters bring that with them en masse, or a few of them brought it? What was your experience?
Ms. Lynch: They typically bring them because it tells them where they go to vote and what their poll number is. There is information on that to be able to help them. That's what they use to go to the poll location, so they do bring them. And that's why they are surprised. They think they are going to be able to use them as identification, and so they're not happy when we tell them that it's not acceptable identification. They think they've got something that actually has their address on it.
Senator Moore: We've been told that those cards are going to be issued again in the next federal general election, so voters will probably be bringing them with them again. What are you going to do?
Ms. Giesbrecht: It does say on the card that you can't use it as a piece of ID. It's clearly written on there. I'm not sure what the question is. Are you thinking it will be an issue again?
Senator Moore: I think it might be. You talk about people who live distant from the polling station and show up with the card.
Ms. Giesbrecht: I'm talking about vouching. If vouching gets removed, then that leaves them with no option. It doesn't really have to do with the voter information card.
Senator Moore: No. However, if that card was an assist in identifying them, who they are, that they're legitimate voters, we're supposed to make the system better. We're trying to make as many people vote as possible. That's the thing here, as far as I'm concerned.
If that helps, I would like to see it continued. I think Ms. Lynch said you wish VIC cards were being included as acceptable identification and that it would help. You also wish the legislation included a harmonization of all identification requirements. You think that the VIC cards would be, on their own, sufficient ID or with something else?
Ms. Lynch: I think that the issue is to make sure they have something with the address, but I think they should have a second piece of ID. I hear some people getting concerned about people coming along and finding them on the floor somewhere, or the person does not live there anymore and they throw them out. But if you have a second piece of ID, so then they have to have something with their name on it. Then you have the two in tandem, but you have the one with the address.
Here in Ottawa, just the number of times that public servants will come in and want to vote and want to show their government ID, and I say, "Show me your address on that government ID." It has got their picture.
Senator Moore: So what do you do in those situations?
Ms. Lynch: I say, "If you have something with your address, and if you don't you're out of luck. Come back later." Nine times out of ten those are the people who come five minutes before the poll closes. Then the only thing that's between the elector and voting is that poll official, and they're the ones who are having to say "no," and they're the meat in the sandwich in that situation. It's very awkward for them. They're there, and in their minds they want to help people to be able to vote. Having to say "no" puts them in a very awkward situation.
Senator Batters: Ms. Giesbrecht, I'm not sure if you're aware because this happened just quite recently. Last Friday Minister Poilievre announced some acceptable amendments that the government would be proceeding with, and one was an amendment to be able to vouch for address only. I don't know if you knew about that, but it was quite recent. The amendment would be one-for-one vouching just with respect to address. You will still have to have ID to prove identification. That would alleviate the concerns you voiced earlier.
As well, there is an amendment that the government is proposing about the central poll supervisors; that particular part is not being proceeded with. I didn't know if you knew about that as well.
Dealing with the voter information cards, we do have 17 months before the next election, so I would suggest that a big part of Elections Canada's advertising campaign to tell people how, where and when to vote would be to also inform them about the requirements of address identification. Perhaps that's something you can pass along when making recommendations to Elections Canada. Then people are as informed as they possibly can be and as prepared as possible when they come to the polls.
I'm not sure if you're aware that when we had the Chief Electoral Officer, Marc Mayrand, before our committee he talked about the significant error rate that voter information cards have. There's a 10 per cent error initially, and even with targeted revisions it still only goes down to 7 per cent. With 23 million voters, that would be 2.3 million errors. Even with a 7 per cent error rate it would still take it down to 1.6 million errors. That's significant. Were you aware of that? Does that change your perspective about the voter information card used as ID?
Ms. Lynch: I would first like to speak to the other point in terms of the ID and people having a year and a half. Unfortunately, for all those of us who are interested in elections, for the vast majority of voters out there, elections aren't top of mind for them. It's always that, once an election has been called, all of a sudden they start thinking about these things, which makes it a little late in the day for them to do something.
I don't think that Elections Canada is the organization to be getting into the ID business. I think it wouldn't be bad if there was something out there nationally, but I don't think Elections Canada is the organization to do that. That's probably for a different discussion.
With the question about the voter identification card, again I guess there's nothing absolutely perfect in this world, but given the challenges that people have in terms of some of these targeted groups, such as seniors and students, if people have already gone to do the targeted revision at their homes, I don't see why you cannot be using that VIC card as ID for them.
I also think that if you have that in concert with another piece of identification, you're going to whittle down that issue that we have or that you're concerned about in terms of any errors or misrepresentation.
Senator Batters: It whittles it down to a 7 per cent error rate, but it's still 1.6 million errors.
Your comment that it's not really Elections Canada's role as far as identification, but it is their role to help people understand where, when and how to vote, and that's what we are trying to focus on. Wouldn't part of their proper advertising be explaining what is needed to be able to vote, identification that shows your name and address, and here are the ways you can show that?
My other question I had was regarding Ms. Lynch speaking about long-term care facilities and the problems that you saw dealing with identification for those people in those facilities. Again, I bring to your attention the amendment that has been proposed by the government about vouching for address, but that would only be one for one, just as it is now.
Ms. Lynch: See, that's the problem.
Senator Batters: That's not a change; it's one for one. That's what it is right now, that's what it will remain, for address only, though. Those attestation forms from a long-term care facility or First Nations reserve or student residences, those types of places, they allow for many more people to receive their address identification through that type of form.
Perhaps then, rather than the more complicated process of vouching, an attestation form, which could be completed considerably before election day itself, would be something that, while it might take a bit of work, is not as cumbersome as arranging for vouching for all residents on election day. Would you agree with that?
Ms. Lynch: They wouldn't be doing the vouching part of it in long-term care because that wouldn't be feasible. Maybe there is some possibility, but I can't see it.
Senator Batters: What were you proposing then?
The Chair: We have to move on. I'll put you down for the second round.
Senator Jaffer: Thank you for your presentation.
I would like to get a handle on the situation before this bill. During the last election, if a person came to vote without ID, a homeless person let's say, because you've been doing this for a while you probably know people who come to vote, how did you handle it before this bill comes into operation? How would you handle a homeless person who has no ID?
Ms. Lynch: It was interesting. In the last election, while they allowed VIC cards to be used for youth and in long-term care facilities, they were not allowed for the homeless. I'm not sure of the ins and the outs, but I believe in that case an administrator would have done an attestation for them, but they were not able to use VIC cards.
Senator Jaffer: They would do an attestation so this person would be able to vote.
Ms. Lynch: If they actually slept somewhere and they had an address or a link with that, but if they didn't, they would have a hard time determining an address.
Senator Jaffer: How did you handle it?
Ms. Giesbrecht: In Provencher, we don't have anybody.
Senator Jaffer: If a person turns up and says they have no ID?
Ms. Giesbrecht: We still have shelters; those are usually shelters for women who are abused. In that situation, we have had attestations. For somebody that doesn't have ID, I gave that example of a wife — and this is very common with seniors where the wife won't have anything. They will come to the polls, and the husband has his ID and his wife has none, so he'll vouch for her.
Senator Jaffer: This is very important; you have experienced that yourself?
Ms. Giesbrecht: I've been there when it has happened.
Senator Jaffer: You mean ID with an address or ID, period.
Ms. Giesbrecht: The husband has proper ID. The wife is on the list but has no ID.
Senator Jaffer: He attests for her?
Ms. Giesbrecht: Yes.
Senator Jaffer: Elections officials who run the polls, they get adequate training for that day, and I accept that, but not enough training as a full-time employee. If someone is going to be denied the right to vote, should there not be someone senior in that polling area?
Ms. Giesbrecht: There is.
Senator Jaffer: That is the person who makes the decision in the end?
Ms. Giesbrecht: Well, the central poll supervisor will call the returning office to let us know of the situation so we can help. Most often we will end up talking to the elector themselves, and we deal with it.
Senator Jaffer: There is a senior person, besides the polling person?
Ms. Giesbrecht: Yes. Not all polling places will necessarily have the senior person there. There are central poll supervisors who are also roaming ones, especially in our area, where they will be responsible for three different polling places, and they'll go from one to the other and spend a fair bit of time at each. That's what we end up doing.
Senator Jaffer: Do either of you have any reserves?
Ms. Giesbrecht: We have one reserve.
Senator Jaffer: I understand that many people living on reserves have ID but not addresses on their status card.
Ms. Giesbrecht: Right.
Senator Jaffer: How have you dealt with that?
Ms. Giesbrecht: We have Roseau River reserve in our district. We have a community relations officer that we are in contact with, and pretty much we run everything through that person. They are the ones who help us set up a registration booth in the community so that people can come and register. We were allowed to use the voter information cards for those electors.
Our voter turnout there is very low. The percentage is almost non-existent. There are a lot of resources that go into making it possible for them to vote, but it isn't necessarily used in that area.
Senator Plett: Thank you, ladies, for being here. I'm going to declare my conflict of interest here. I probably voted every election, except one, in the riding of Provencher. I'm going to question Ms. Giesbrecht on some of her comments.
First, let me assure myself of the facts. Senator Batters asked whether you had read the amendments. You have not read any of the amendments the minister has proposed.
Ms. Lynch: I have heard the ones that have been commented on in the press, and I was listening to the ones pertaining to the comments that I was going to speak to today, and I referred to those in my opening remarks.
Senator Plett: On the appointment of central poll supervisors, one of amendments is retaining the current — well, not amendment; he is dropping it from the bill — that the current process will remain.
I know we're talking about this across the country, but in his report, Mr. Neufeld said that 120,000 people were vouched for in the last election. Do you have any idea how many would have been in Provencher?
Of course, we are still allowing vouching of sorts. Many of the situations you use, especially a man and a wife, if there is only one address the husband would be able to vouch for his wife; he can only vouch for one person. How many people in Provencher would this affect? Do you not believe that with amendment that the minister has now put in place with the swearing of an oath, heavy fines and penalties, that that would solve most of the problems at least in the riding of Provencher?
Ms. Giesbrecht: Somebody still needs to provide some sort of ID, even with that in place.
Senator Plett: Yes. But the suggestion you were making, most of these wives would have a piece of ID because we know they are on health care and so they would at least have a health card.
Ms. Giesbrecht: Whether they bring it to the polling station is one thing, and we also have children who bring their elderly parents. We have parents who bring their child who is now able to vote. They don't have any bills or anything. It's about the physical address.
Senator Plett: So it's about convenience more than not being able to do that.
Ms. Giesbrecht: For the most part, yes.
Senator Plett: They have forgotten. Education probably would help.
Ms. Giesbrecht: Yes.
Senator Plett: They may have to travel back home 20 minutes one time, and the next time they would consider bringing their ID.
Ms. Giesbrecht: Probably. I think it is an education thing. I agree there are many forms of identification, and you can likely scrounge one item up. Most people don't think of it.
I've said it before, people will get used to the idea of having to bring ID. People are old school and they think, "Well, you know who I am." These are small communities. That's another issue.
Senator Plett: I grew up in a small community.
Ms. Giesbrecht: Right. You have Mr. Whoever from right around the corner that is taking all the voters, and he says, "Well, you know me. Why won't you let me vote?" That becomes a problem in these rural communities where you have people who live there working at the polling stations. People are coming in without their ID because they know you are going to know them, and we're being told that you can't let them vote; they have to prove their residence and identity.
Senator Plett: My concern is that they are not disenfranchised. It is more education; it is more that they didn't do it this time.
Ms. Giesbrecht: Absolutely.
Senator Plett: If I walked into a polling station in Landmark, born and raised there, and somebody would ask me for ID, I would also be offended; nevertheless, I would learn that I have to bring it.
Ms. Giesbrecht: Right.
Senator Plett: In your comments, you said, "I also wish the legislation included a harmonization of all identification requirements." Could you explain what that harmonization is?
Ms. Lynch: Yes. As people go through different phases they are asked for different ID. So, for example, the different steps are places where they need to show identification. The vouching revision; so that can be in the office. The people come in and they have to show ID to be able to register to vote. For targeted revision, people go knocking on the door and they ask them to show ID there. When they come into the office for the special voting rules, they're asked for ID there. Registration, when they come to the poll, they're asked for ID there, and then they're asked for ID again to actually vote. And they're not all the same, so there is confusion. Some of the things that Neufeld talked about was a little bit of confusion about what is required.
I suspect some of the issue — and I could be wrong, but you try to figure out where does some of this come from — if they go to see somebody in their home, so it could be a targeted revision at a high turnover place, they will go in and ask them for ID. They're seeing them at home so they know they're at home. Therefore, they're not necessarily asking them for an ID that has an address on it. The person now is signing them up, they're good to go. They come to vote. Now they're asking them to show their address.
Senator Plett: Education again?
Ms. Lynch: I don't think we can put it all into education. People have been asked for ID now. They're asked for ID at the provincial level. Any time they're asked to vote in the last several elections, federally and provincially, they're being asked for ID, and they still haven't got it right.
I mean, it doesn't hurt; the more education, the better. I am not going to say don't do it. But a harmonization would go a long way. Even within the office, SVR will have a poster up about the identification that's required. People will come in, see it, get ready and then they show it. Over here at registration, they're asking for something different. I had a situation where I had —
The Chair: I will have to jump in here. I apologize.
Senator Plett: Second round, please.
[Translation]
Senator Dagenais: I am going to repeat what I said to all of the witnesses who have come here. A few years ago, not that long ago, passengers did not have to identify themselves to board a plane. Today, you have to have your boarding pass and a piece of ID. Not so very long ago, you could walk into Parliament without any ID. Even to come in here, into the East Block, you have to identify yourself.
There were elections in Quebec recently. ID was required and you had six choices, among them the health insurance card and your driver's licence. If you did not arrive with your voter's card — I had forgotten it but I was asked for ID with a photograph. The bill goes further than that; it allows close to 39 pieces of ID.
In order to ensure a sound democracy, do you not think it preferable to ask people to identify themselves, even if that means fewer electors will get to vote, rather than letting every Tom, Dick and Harry come to vote, within a laxer system? Of course that means you are allowing a larger number of electors to vote, but you are not necessarily checking the person's identity.
[English]
Ms. Giesbrecht: I agree with the idea of ID and people knowing that if you are going to go vote, you need to bring ID. The issue is mostly with the address. People know that if they are going to cross the border, they need their passport. You know that and bring it along. The problem is a lot of these IDs that people have don't have addresses.
As far as fewer voters coming and being okay with that, I would have a hard time with that. Being a representative of Elections Canada, Elections Canada takes the brunt of that. If you're going to have electors that are turned way, they won't come back. Fewer voters will not make for more voters later: "I have learnt my lesson now and I'm going to bring my ID for the next time." I think people get very angry. Whether it's right or wrong, that's not the point. The point is that we're losing voters. It's already declining quite a bit. If we want to lose more voters, that's a good way to do it.
Education makes sense. It's just that a lot of these pieces of ID that we have now just don't have everything that is required, according to what we're asking for.
[Translation]
Senator Dagenais: I understand from your answer that it is more important not to lose electors, rather than having electors who identify themselves?
[English]
Ms. Giesbrecht: Not true. There are different ways to identify voters. In our small communities, there's people vouching. That's been a tool for us to use that has been very good. I can't say the same thing in urban areas. I know it's probably completely different, but vouching has been used for the most part in the areas that we are.
I don't see the problem with having people being vouched for. You are talking about people voting illegally, and I don't know what percentage we're looking at. I read through some of the reports.
Senator Plett: Forty-two.
Ms. Giesbrecht: That's not illegally. That's actually a different number. In Mr. Neufeld's report, he talks about those that he knows were not legal. What's the word I'm looking for?
Ms. Lynch: Irregularities.
Ms. Giesbrecht: Right. I think that percentage has been found to be extremely low.
Senator McIntyre: Thank you for your presentations. I was going to ask you questions on vouching and the voting information card, but we have already covered that ground, so I will move on.
We currently have three advance voting days in addition to the general voting day. Despite this availability, there are eligible voters who may be prevented from voting because of work and family responsibilities. For example, I think of the many Canadians who work six days a week, including Saturday, and it is difficult for them to get out and vote.
C-23 will establish an extra advance day of polling. Canadians will now have access to four advance polling days. My question is this: Will this initiative improve voter turnout? Do eligible voters in your respective jurisdictions use advance polling, and to what extent?
Ms. Lynch: Yes, they do come. Ottawa Centre is a little unusual in that, compared to the other ridings in the area, not as much. The turnout for advance polls isn't as high as the sister ridings. However, we have a very high turnout on election day. We're one of the top in the country. It is as if they stop and they mull it all over and then come on election day. People haven't been able to figure that out. They try to understand. It seems to be a pattern.
Yes, having four days will be good. I hope that people will spread it out. It is usually that the first day is a problem. The poll officials are like the deer in the headlights. They see people lined up down the street because there's busloads of people brought in by the different campaigns because they want to get their vote out for the advance polls. I am hoping with four days that they will spread that out. For voters, it is an absolute plus having the four days.
The only reservation that I have is perhaps with some poll locations. If we use a church for an advance poll, that could be an issue on the Sunday. We had a trial run with that in the last election because the advance polls were held over Easter, so we were involved with Good Friday and all of that, and we managed to get through that. The other issue with that was with poll workers, whether or not they're going to be okay with four days, but that's minor.
My concern to do with the advance polls is the procedures that are outlined in the legislation. That is very complicated. We talked about training earlier, and the whole training is going to be how to deal with the different boxes and what to do with this and that rather than the actual processing of voters in a fast and efficient manner.
Senator McIntyre: You have mentioned churches. What about voting on Sunday? I know for a fact that both Quebec and Saskatchewan provide for advance polls to be conducted on a Sunday. I also know for a fact that municipal elections also take place on Sunday in Quebec. What about voting on a day of rest? I know, for example, that advance polls took place on Good Friday during the 2001 general election, so what are your views on Sunday voting and day-of-rest votes?
Ms. Giesbrecht: As a returning officer during that 2011 election, I received many calls from electors who were not happy about voting on Good Friday. If I'm giving you an opinion, I don't think it's valid in this. I think that it does cause concern for a lot of areas.
If I could go back to what you are talking about — the four days of advance voting — in Provencher, we have a lot of rural areas that will get advance voting stations that will only have between 5 and 20 people show up in a day. Adding a day to those locations doesn't help, but in the bigger centres it does.
There's a little bit of a balancing act there. It would be nice if we could choose how long we're going to have advance voting in each of the different locations. That's just an opinion.
Senator McInnis: I, too, was going to ask a couple of questions on vouching, but I think we've heard enough on it. I do have a couple of other points I wanted to raise.
With respect to staffing the polls, DRO poll clerks and registration, quoting you: "It is my understanding that if the candidates do not provide a sufficient number of names, that we will need to contact the local association in the party. We normally have one primary contact within each campaign. I would personally feel uncomfortable approaching anyone other than the one person who has been identified as my contact." I would like your comment on that. Ms. Giesbrecht, is that reasonable pronunciation?
Ms. Giesbrecht: Yes, that's perfect.
Senator McInnis: Good. You state that, if we allow political parties to staff the polling places, we are "viewed as partisan no matter what the Elections Act says. Electors are basing their opinions on what they see happening at the polls."
I have not been involved not as long as Senator Baker because no one around this table has been involved in politics as long as him. We just had an election in Nova Scotia, for example. I was in several polls. I have never seen any difficulty whatsoever.
When I read this, it is not an insult — that's too strong a word. But it is an affront to say that you would have trouble — say it is the campaign manager of the number one party that provides it — going to anyone else if that person was not available.
Secondly, it always was, for years and years, the case that both parties got together and appointed the workers. There was never any difficulty. I have never seen or heard of any problems.
Could you comment on those?
Ms. Giesbrecht: Absolutely.
In Provencher, in the last two elections — 2011 as well as the by-election — I didn't receive one name from any of the parties. I spoke to the previous returning officer. He received a very short list of names — under 10 — from the election before, and so we haven't been given names.
I have no problem with people applying for a position separately. They could be affiliated with a political party. To me, that's not an issue because they're applying for a position, and it is then merit-based. It is not us giving names, saying, "You have to find a position for this person."
That's where I stand on that. I'm not saying that we won't take people that are affiliated with political parties. I think that it is easier to base it on their past experience at elections. Our central poll supervisors are usually people who are quite experienced. We trust their judgment. I expect a lot of them. They are representing Elections Canada. They're not representing a political party. That's where I stand on that. That's why I said that.
Senator McInnis: Do you not put on classes? They do in Nova Scotia prior to the election of the workers. Your office doesn't?
Ms. Giesbrecht: I was appointed as a returning officer in spring of 2011. I didn't actually do any of the prep work for that. That was baptism by fire. I was in there, and then I had a by-election. Once again, you don't have any prep work to that. So I spoke to the candidates — the official candidates — and I asked them, like we always do, for names. I let them know, "This is your option. You can give names. I have not been given any."
I'm happy with that because then I can hire people based on their experience and people that apply. Anybody can apply. We won't necessarily hire them, but anybody can apply.
Senator McInnis: I'm surprised at that because, down home, they lobby for the positions. Really.
Ms. Giesbrecht: I'm under the impression, speaking with the official candidates and official agents, that they need as many people as they can to go and get their information. In Provencher, they're driving all over the place, going from polling station to polling station trying to get information. They want their people working out of their office. They don't want to send us the workers. They want to keep them for themselves. That's where I come from.
Senator McInnis: I can't speak for the other parties, Ms. Lynch, but approaching the Conservative campaigns, you will be treated with the utmost respect. You needn't worry about going to see them.
Ms. Lynch: That's not what the issue is here. We meet with the candidates or the associations even prior to an election to bring them up to speed on some of the changes that have been happening. There will be meetings. They will wonder what the implications of this new legislation are, what we have done, what's happened with redistribution, what that has done to polls. We have that type of discussion. In those cases, sometimes the candidate hasn't been identified yet, so we will have the association there.
Once they have the nominated candidates and once they are coming forward, what happens is that, in the Atlantic provinces, the ROs have nothing to do with staff because all the names are put forward. One and two; they're done. Staffing is a walk in the park for those ROs. There's no doubt about it. Once you get west to Quebec and Ontario and continue on, out in Alberta, they're competing with McDonald's, and McDonald's wins in terms of salary and what is involved.
The issue that I have with going to the candidates is that, for the candidate, once they're nominated, it is basically their show. So if I'm now going to the party and saying, "I need names from you," I just feel that there has to be one point person. If it is from party X that I would be approaching, I would like them to have done that consulting with the party, with the association, and to put in one list. It just makes it cleaner. It is the same for them. They call my office; they speak to me. If there's a problem on election day, they speak to me. It is the same thing; if we're having problems with any of their people at the polls, I talk to their contact.
That's why, with the names, it is a lot easier if they funnel through and we make sure that we have covered all bases. That's where I'm coming from. I don't mind having the names. I'm happy, but I just want to make sure. I feel almost as if there's the potential of stepping on someone's toes.
The Chair: We have to wrap it up on that note. We thank you very much for appearing here today and assisting with us our consideration of this legislation.
Appearing now are André Blais, Professor with the University of Montreal by video conference; and David Smith, Professor Emeritus with the University of Saskatchewan.
Welcome, gentlemen. I'm assuming you have opening statements. Professor Smith, could I ask you to lead off?
David E. Smith, Professor Emeritus, University of Saskatchewan, as an individual: Certainly. Thank you very much. Some copies have been circulated, although I have altered it a bit.
I went to the University of Saskatchewan in 1964 because of the reputation of Norman Ward. In those years, he was the dean of Canadian political scientists, especially on the subject of Parliament, representation, elections and the public purse. He was also a writer of humour, having won the Leacock Medal in the 1960s. He was widely known, among the public and other political scientists, as an amusing raconteur, a reputation I appreciated but was to learn required emendation.
One day, during a federal campaign in the 1970s, I came into his office and found him angry and upset, characteristics he had never displayed before. The cause of this anguish was the candidacy of a friend who was running as a candidate for the Rhinoceros Party and, more particularly, that individual's campaign poster found on constituency telephone poles, as was done in those days, showing the back of his head and with the words "Vote for this man, Vote Rhinoceros." Norman said in a strained voice: "Men and women in the past have given their lives so that Canadians might be free to cast their votes for those who assume the responsibility to seek public office."
For the Canadian humorist, elections, I learned, were no laughing matter. I was taken aback by this display of emotion not only because of its source but also because for the first time, I think, I saw an election and the act of voting less as subjects of academic study and instead as the foundations of parliamentary democracy. For me, it was a Damascus moment. That response makes me appear politically shallow, I realize, but it permanently focused my attention where it had not been before — on the mechanics of elections and voting.
A few years later, a colleague and I were asked by the Lortie Commission on Electoral Reform and Party Financing to a write a comparative study on systems of voter registration. The Canadian practice of enumeration in order to compile a voters list a few weeks before a federal election was falling out and a so-called permanent register coming into fashion.
Our study of the United States, United Kingdom, Germany and Australia did not persuade us that the systems used in those countries were superior to Canada's. The reason why they remained unpersuasive was that the first principle that informed our study was to create a voters list that would embrace the highest percentage of eligible voters. In our opinion, enumeration produced that result more accurately and more consistently than did these other systems. Nonetheless, the commission recommended adoption of a permanent or continuing list of voters.
The reasoning offered was that enumeration required more than 100,000 enumerators if it was to be completed within the three-week period allowed under the law. Such an army of volunteers was no longer available in late 20th century Canada, so a permanent list supplanted enumeration, but in my view, the register is inferior to what Canada once had in the sense that on election day, it fails to provide as accurate and complete a list of eligible voters.
As an aside, I wondered to what extent the rise in vouching, which is said to be a problem and a potential source of fraud, is linked to this change in the compilation of the voters list.
The object in making these remarks and in a discussion on change to electoral rules and practices is to stress the importance I attribute to promoting voter participation. At the risk of sounding portentous, I believe that the mechanics of elections are the sancta sanctorum of parliamentary democracy.
In recent years, I have been working on projects involving First Nations. One of the many benefits of that engagement has been to lift the scales from my eyes on what a cosseted middle-class life I have been leading. Similar consciousness-raising has accompanied new responsibility for elderly family members in care facilities. Here are two communities whose civic rights must be protected. The principle that should inform mechanisms for the disadvantaged and marginalized to vote, I think, is openness.
The problem, I think, with Bill C-23 both before and after the changes announced by the minister a week ago is it is not clear what principle informs its terms. Is it to promote voter participation? Is it to stamp out personation at the polls? Is it to return the conduct of elections in the constituencies to where it once was, in the hands of the political parties, and thus to reverse the commitment on the part of all parties in Parliament for the past half century to promote public participation in elections through the work of independent electoral boundaries commissions, a regime of election finance laws and the educative work of the Chief Electoral Officer to combat the decline in voter turnout, particularly among the young? A consistent principle should be advanced, and it must be a principle that promotes rather than discourages voter participation, for voting is the essence, I believe, of citizenship.
Thank you.
The Chair: Thank you, Professor Smith.
André Blais, Professor, University of Montréal, as an individual: I would like to thank the committee for inviting me to offer my thoughts on Bill C-23. Throughout my career, I have studied elections in Quebec, in Canada and around the world, and it is both an honour and privilege to speak to you today.
Elections are an essential element of democratic life. When we disagree, instead of fighting, we let the votes decide. But the elections produce losers, and they work only if losers graciously accept defeat, and losers accept defeat only if they perceive the election to be fair.
This is why I was concerned with the first draft of Bill C-23. I agreed to sign with colleagues letters in which we criticized both the content and the procedure.
Many of the faults in the bill seem to have been corrected in the amendments announced last Friday, though I have not seen the fine print. I wish to thank the government for having listened to the critics and for bringing these substantial amendments.
I still have some concerns which I will express in a moment. Before doing so, I wish to express my support for the new government position on vouching. We should make it as easy as possible for everyone to vote, but we should also take all the steps to prevent electoral fraud. The two goals, integrity and inclusiveness, are equally important. I side with the government and I agree that people should have to present an ID card. But I know that some people do not have an ID card with an address and these people should have access to vouching. In fact, this was a proposal I intended to make to this committee before I learned about the announcements on Friday.
There remain some flaws in the existing bill. The most important ones concern the Commissioner of Elections. As I have indicated, preventing electoral fraud should be a top priority. The commissioner has reported the difficulties he faced when investigating the robo-calls affair because he could not compel witness testimony. I still fail to see any compelling reason for not granting the commissioner the right to compel testimony.
In the same vein, I fail to see any compelling reason for moving the commissioner to the Director of Public Prosecutions. It is crucial that the commissioner be completely independent of all the parties and also completely independent of the government so that people can trust that the electoral law is duly and fairly implemented. That independence and, most crucially, the image of independence are better guaranteed at Elections Canada than in the Department of Justice. The point has been made eloquently by the Director of Public Prosecutions on Monday.
I urge the committee to make two additional amendments to Bill C-23: one, give the Commissioner of Elections the power to compel testimony; and, two, maintain the independence and legitimacy of the commissioner by keeping it at Elections Canada.
The last point I wish to make is about preventing Elections Canada from encouraging voter turnout. High turnout is a public good. We are better off if turnout is 80 per cent rather than 50 per cent. An election is perceived to be more legitimate when turnout is high. The quality of representation is enhanced when the most people express their views at the ballot box. We should all wish turnout to be as high as possible.
The question, then, is who should have the responsibility for encouraging voter turnout? The government seems to believe that it should be the parties. Clearly, the parties have an interest in getting out their vote. They mobilize their supporters. The problem is that many people do not support any of the parties. They are often not very interested in politics, they are difficult to reach, and the parties have no interest in reaching them because they may well vote for another party. We can count on the parties to get out their vote but not to encourage everyone to vote.
Whether the responsibility should be given to Elections Canada or to some other independent organization is an open question. It seems to me that Elections Canada is well placed, since it is in charge of organizing the election, and has to provide information about when and where to vote. It seems to me that there are economies of scale in having Elections Canada taking care of this.
In short, democracy works better when turnout is high and it is in our collective interest to encourage people to vote. That responsibility should not be left to the parties alone, though they are an important part of the equation. It makes common sense to entrust Elections Canada with that responsibility, though other options could also be considered.
Thank you for your attention.
Senator Baker: Thank you to both professors for their very informed commentary on this bill. I have one question for each of the witnesses.
Professor Smith, I agree with you, and I'm sure that Senator McInnis will also agree, that the old system of having a voters list for every election campaign and then a revised list and then a final list — three visitations in all was the old system — worked much better than any of the systems since that time.
When our Charter of Rights and Freedoms was brought in, in 1983, that was the system that was in effect at that time. In section 3 of the Charter there is only one requirement: that you be a Canadian citizen. Any requirement beyond that, to produce ID, constitutes a violation of that section of the Charter.
Professor Smith, as we go down the road of requiring more and more identification, do you believe that is one of the principle causes for the reduction in the percentage of eligible voters who do not vote?
Mr. Smith: I think it is a significant contributing factor. As you know, with enumeration, when they came to the door all they asked was, "How many people here meet these requirements to vote?" That included that you are a citizen, you've lived here for whatever it was, six or three months, and that was it. Then when you went to the poll, nobody asked for it.
Having heard the two previous witnesses who are really at the coalface when it comes to administering electoral law and meeting the voters, quite clearly this presents a real difficulty with regard to identification. That was part of a concern I had, particularly with the First Nations and the elderly, but I think it's general.
I remember on the last election on Good Friday being surprised the poll was open and seeing a friend at the head of the line who was an author, and therefore literate, who didn't have the right identification and was holding all of us up while she had her husband go and get identification for. Actually, the penny dropped then. There is a real difficulty, and I'd like to think — but I don't believe — that having been rejected at the poll once that you'll come back next time with identification. I think you won't come back, is my view.
Senator Baker: Professor Blais, you said additional change is needed to the legislation, particularly to give the commissioner the right to compel testimony.
The criticism of that has been, to date, in the House of Commons. The minister before this committee used the example of, for example, Senator Dagenais, who is a former police officer, quite renowned in his own right, and that he does not have the power — even a police officer, the argument is made — to compel somebody to speak. Have you turned your mind to that question? What would your response be?
Mr. Blais: My response is that electoral law is extremely special. The whole system is based on loser's consent. Those who lose the election are convinced that the whole approach, the procedure, has been a fair one. When they have doubts, then the whole system is in jeopardy.
It's extremely important that everyone is convinced that if there is fraud somewhere it will be caught by the system and that the authorities have all the powers necessary to inquire as effectively as possible. The answer is that electoral law is extremely special.
Senator Frum: Gentlemen, you both addressed the issue of voter turnout and Elections Canada's role in that. You are aware that under this bill Elections Canada will and should be focusing its efforts on voter turnout to deal with the when, where and how of voting. Are you aware that in Elections Canada's own studies they identified that the primary reason that youth cited for not voting was often that they did not understand the ways they could vote? Elections Canada's report said that the most important access barrier to youth voting was lack of knowledge about the electoral process, including not knowing about different ways to vote. Half the youth in the country did not know they could vote at advance polls, by mail or through special ballot. A quarter of young non-voters expressed that not knowing where, when or how to vote played a role in their decision not to cast a ballot. Given that, and given the fact that that is what this bill is asking Elections Canada to do, to focus on the where, when and how of voting, what is the problem with that?
Mr. Smith: I don't think there's a problem with that. I think the point raised by Professor Blais was the larger one, as I understood it, that the bill would not allow or encourage Elections Canada to promote electoral participation more generally rather than focused on the youth vote, but I think certainly with regard to the youth vote.
Senator Frum: They can tell everybody, all Canadians, as they should.
Mr. Smith: On those particular —
Senator Frum: But the point being that where, when and how to vote are often the exact barriers that prevent voting. Not knowing about those things is what prevents people from voting.
Mr. Smith: I think that's true. I think there are other barriers to voting, depending on the particular group, as I was saying in my own remarks with regard to marginalized First Nations, and so I think there are other reasons. It's more than lack of that knowledge, which I agree they might well have, but there's also the need to make clear to them the benefit that comes, admittedly somewhat delayed, from participation in that civic activity. I think that is a role for Elections Canada to play.
Senator Frum: Mr. Blais, would you like to comment?
Mr. Blais: There are many reasons why people vote and don't vote. I spent most of my life trying to understand it, and it's still not absolutely clear. What is clear is lack of knowledge is only one of many factors which explain why people don't vote.
In fact, I think people are more informed about all aspects of electoral legislation than before. There's more information out there, but turnout is still going down. There are all kinds of reasons, and this is only one. When you ask a non-voter why they didn't vote, and you know it is not well-regarded to abstain, then you try to provide the easiest reason that comes to mind, and that could be "I was not aware and didn't know where it was," et cetera. We should take it with a grain of salt.
I acknowledge it is a factor, but it's only one of the main factors that affect the decision to vote or not. I don't think we should focus only on that factor, as such.
Senator Frum: Can you elaborate on what the other factors are?
Mr. Blais: For instance, whether people perceive it's their duty to vote or not; whether they perceive that there are differences between the candidates and the parties; whether they perceive the election is corrupt, politics is corrupt; all the attitudes that make people think elections are important or not. There all kinds of considerations that have nothing to do with knowledge, as such. They are at least as important as knowledge.
Senator Frum: You think it's Elections Canada's role to fill in those gaps?
Mr. Blais: Elections Canada or some public organization. We have an interest in having high turnout. It's our collective interest and we should try whatever we can to encourage people to vote as much as possible. Whether it should be Elections Canada or another public organization is debatable, it is in our collective interest to increase turnout as much as possible and to understand why people don't vote and to try to encourage them to change their minds.
Senator Moore: I want to thank both witnesses for being here.
Professor Smith, I just want to touch on one of your comments where you said that your mentor Norman Ward said:
Canadian men and women in the past have given their lives so that we today might be free to cast our votes for those who assume the responsibility to seek public office.
In consideration of that credo, what do you think of the idea of robo-calls and directing people to incorrect voting stations?
Mr. Smith: I think misinforming individuals on any matter is wrong. I think misinforming them with regard to elections is doubly wrong.
Coming back to the point in my remarks, the act of voting could not be any more central to a democracy; could not be more central. The compilation of an accurate voters list and the administration of the mechanics of voting on election day are about as central as you can get, and all the high-flown talk really doesn't get to it.
That's very important, and that's part of what I took from Norman's comment and why it really set me back on my heels. I wasn't actually all that young when he said this, but I think until that moment I tended to think of elections as part of political science; that's chapter 10. But actually, it isn't. It is chapter 1, and there really is not another chapter until you get this right.
That is the way I tend to look at elections now: To what degree do they facilitate participation of eligible — well, obviously eligible.
My concern is that while there has been discussion or talk about fraudulent behaviour, there is very little in the way of factual evidence of it. I don't see that, and it seems to me putting in place some mechanism for an almost hypothetical problem will lead to less participation, and that is surely not what one wants.
Senator Moore: Mr. Justice Mosley in his decision regarding the robo-call case in Guelph found there was fraud in that situation. It was not enough to overturn the election, he thought. The decision released last week by the Commissioner of Canada Elections, Yves Côté, was backed up by a $47,000 report by former Justice Louise Charron who said while some voters have been directed to the wrong polling station, there was no evidence this was done to keep anyone from voting. What do you think she thought the intent of that activity was?
Professor, do you have any comments on the robo-call situation and driving people to an incorrect polling station? Why do you think that was done? I think it is reprehensible. Do you have any thoughts on that?
Mr. Blais: It was clearly reprehensible, but I don't know enough about the case, all the evidence, to say anything more. I think it's reprehensible, of course.
Senator Moore: With regard to vouching, you said you supported it, but there must be mechanisms to preventing fraud. Do you have any thoughts or suggestions for the committee?
Mr. Blais: All I can say is that I was trying to understand the government's position about vouching. Basically, we have no evidence of fraud within the vouching at all.
Everything else being equal, I understand there is cause for concern that the probability of fraud does increase with vouching. I understand the concern.
I thought a reasonable compromise would be to allow vouching but still require at least some ID card. This is exactly what I was going to propose, and this is my understanding of what the government is now proposing. I think this is a very reasonable compromise.
Senator Batters: First, I want to especially welcome Professor Smith here. He is from my alma mater, the University of Saskatchewan. I want to declare a bit of a conflict. He was my husband's political science professor and my husband's favourite political science professor. It is very nice to see him here today all the way from Saskatchewan.
Professor Smith, we've heard a lot about consensus and how the changes to elections law have generally been the product of consensus. The letter signed by the academics, including both you and Professor Blais, referred to it as a laudable Canadian tradition that was not followed in this case. To me that seems to be a bit of revisionist history.
To look at some electoral law reforms over the last decades, Bill C-114 passed in 1993 on division, Bill C-63 passed in 1996 on division, Bill C-2 passed in 2000 on division, and Bill C-24 passed in 2003 on division.
I'm not sure if the first one of those was under the Tories or the Liberals, but all of those other ones happened when the Liberals were in power. They all made substantial changes to elections law, and none of them became law as the result of consensus. I'm wondering if either you or your colleagues raised issues about those particular laws at the time.
Mr. Smith: I see the distinction between consensus and unanimity. You can have difference of opinion; you can have division.
I don't mean to promote my book, because I don't have copies here to sell, but there is a new book out called Across the Aisle: Opposition in Canadian Politics, and about half of the book deals with this, the way Parliament did work. I'm not sure that's true now, but I think in the last 40 years or the last century there was a considerable amount of consensus, and one area would be in the area of elections.
The introduction of Electoral Boundaries Commission, that was first Mr. Diefenbaker, and that was before his government was defeated 1963. Then Mr. Pearson picked that up, and the electoral boundaries regime came into effect at that point, and the first boundary drawing was in the late 1960s. That had all-party support. Then the federal election finance regime came into effect, and Norman Ward was on that committee. The chair's name has slipped my mind. Judy La Marsh was then secretary of state. I think it was her. That, again, had all-party support.
For a long period of time there was a sense that you needed to pull elections out of the control of the political parties, per se, because they had too much of a vested interest. The public needed to have more participation, the change in the Income Tax Act and donations, giving tax credits and so forth. There was a lot of consensus on that. Without getting into other areas, certainly on national unity there was a considerable amount of consensus — you can judge whether that was good or bad, but I think there was — on the part of the three major parties in any case, at that point.
Maybe I've run out of time so I don't have to answer the question any more, but I think that there was consensus. It doesn't necessarily mean you couldn't have division. In fact, often Social Credit in those years provided the division.
Senator Batters: True. The examples I referred to were from 1993 to 2003.
Mr. Smith: There is another chapter in the book that deals with that, where it begins to change in the early 1990s.
Senator Batters: So you would agree it did change from consensus to less consensus.
Mr. Smith: Yes. It was not carved in stone by any means.
Senator Batters: Professor Blais, regarding your comments about the Director of Public Prosecutions, I used to be the chief of staff to the Minister of Justice in Saskatchewan prior to becoming a senator. You may be aware of this, but in case you're not, when we were in that office it was always a very well understood tenet of that particular office that that director of public prosecutions, though under the Ministry of Justice, was a completely independent position and in the very earliest of briefings in that particular position one of the most important briefings you receive is how independent that person is. Though it is technically under that particular department or ministry, it is thought to be a very important and a very independent position for the reason that they're looking at different types of things that require that level of independence. Do you have any comment on that?
Mr. Blais: I assume that this is not the perception of the public. I assume that it's easier for the larger public to understand that Elections Canada is completely independent from the government. It's not quite as obvious for the larger public to understand that the Department of Justice has a special status within the government. In terms of public image there is a real difference.
Senator Jaffer: Thank you very much for your presentations.
Last month, including the two of you, more than 160 professors signed an open letter to express your concerns about this bill. I quote:
. . . refusing voter information cards as proof of address, the Bill undermines the right to vote protected by s. 3 of the Charter, a constitutional entitlement so fundamental that it cannot be limited by the Charter's "notwithstanding" clause . . . .
Can you both comment on that statement, please, starting with you, Professor Smith?
Mr. Smith: Do you mean the part about the voter information cards being so fundamental?
Senator Jaffer: You said that by "refusing voter information cards as proof of address, the Bill undermines the right to vote . . . ."
Mr. Smith: The way I interpret it — and this is 100 and some people composing — is that it was a limitation on voters certainly compared to what had been in the past a limitation. Again, as I said in my opening remarks, I generally am opposed to limitations on the civic right to vote unless there is some convincing reason given to me for altering my mind.
As I point out also in my remarks, with regard to enumeration I did eventually come around to the continuing list. I'm not antediluvian, but I do think, unless there's a very good reason, to make it more difficult to vote — and we're not talking about middle-class people — getting people to vote who aren't voting, who have so many obstacles to overcome, voting is a luxury, and it shouldn't be a luxury. It should be made easier for them, or not more difficult.
I don't want to go on with this, but I have granddaughters. I can see them going into a poll in Lethbridge or in Calgary. They won't have any identification that we're talking about here. I just know that. They don't have the identification when I tell them to do it, so why are they going to do it then? I think it will be difficult. Even getting them out to the poll once, if they don't get accepted, they'll never go back. Who's going to swear they know them? These are university students with 15,000, 18,000, 20,000 students in a university and they're in first or second year. Therefore I find it very hard to understand the mechanics of this.
Mr. Blais: It's a tough call and I've been thinking about it quite a bit. I am extremely concerned with voter turnout and with inclusiveness, but I understand the government position, which is that there is always a possibility of fraud and having to show some kind of identity is reasonable.
This is why I rallied to the position that yes, if necessary, we should ask for some identification, but only identification where there is no proof of address because this is much more difficult. It should be possible for almost everyone to come up with some kind of identification without any address.
Senator Jaffer: The other thing you said in the letter is that you were not happy with how the Senate committee had responded. You said we had not adequately responded to Bill C-23. Now, with the amendments that the minister has suggested, do you think this answers some of your concerns?
Mr. Smith: It is much improved, but it is still not the full loaf.
Mr. Blais: I've indicated that this is much improved and that in my mind you should make two additional amendments with respect to the Commissioner of Elections and possibly also remove with the ban on Elections Canada capacity to encourage voter turnout. Those would be my three suggestions.
Senator Plett: Professor Smith, I would like to again, as Senator Moore did, quote the statement from Norman Ward. I would like to add a few words to that quote. I might have changed that so that we today might do our duty and go and vote, as opposed to being free and going and voting. I believe it is my duty to honour the men and women who have given their lives for me so I have the freedom, and I should respect that and I should go and cast my vote.
I have a bit of a problem when we are having so many difficulties. I've spent my life trying to bring people to the polls, albeit in a biased way, and only one party's group; nevertheless, the other groups are doing the same thing. We have shown a reasonable amount of success in bringing our people out and the others have shown on some elections a little more success than we have.
You say that we are taking away people's right or ability to vote. We've had Elections Canada do this over the years, they've done things, we've done things, yet voter turnout has gone down consistently. Now we find people criticizing what we're trying to do to change something with absolutely no proof that this will make it worse. Maybe this will make it better. Maybe people will start feeling compelled to vote.
I have a question for Professor Smith. Again, you alluded to your daughters and your granddaughters. Judging by looking at you, both your daughters and your granddaughters might need some ID when they go into a local pub in Calgary.
Mr. Smith: They never go there.
Senator Plett: They don't go to a pub, okay. I'm sure they travel on occasion. People need identification in today's day and age. Where do you get off, sir, saying having some form of ID? Fine, the address, we've dealt with the address. We understood the address problem. For people not to have any ID, well, Professor Blais at least agrees they should have some ID. I would like you to tell me where you think Elections Canada has been doing a good job of getting the voter turnout. They haven't; it has gone down. We need some form of ID. We can't just have people coming off the streets and saying, "I want to vote."
Mr. Smith: One might say it might have fallen more if Elections Canada hadn't done what it has done. I don't know. Nobody knows.
Senator Plett: It might have.
Mr. Smith: It might have.
As Professor Blais has said, and I think all of us who look at elections, it is a mystery and it's not only Canada, it's in all countries. Why is this happening and how can one reverse it? Because the assumption of that question is that it needs to be reversed, that an active electorate is what is required in a democracy. You must have that. I think we all accept that as almost a given.
On the question about Elections Canada, I read some testimony given perhaps in the House of Commons by Professor Howe from New Brunswick. He referred to how in some of his research he had been using Elections Canada data with regard to turnout and the difficulties. One of the great strengths of Elections Canada is it centralizes this data. Otherwise, it would be much more dispersed. That is valuable. Any efforts they've made in the past to promote youth voting seem to require support and to be extended.
The other question was about identification. I can't speak for my granddaughters, but I do think it is overly optimistic to think that the public, in general, necessarily always carry this kind of identification. I just don't think that's the case.
Senator Plett: They don't always just go to vote. It is a special occasion.
Mr. Smith: They don't always go to vote. We heard somebody mention earlier about going to vote, and often women will not have that ID with them and my own story of the last election being held up in the line because of a well-educated individual not having it.
There has been talk about having a national ID, which we had in the war. We had that in the war. When we looked at the electoral systems and registration in Germany, they have one there. Babies, before they leave the hospital, come out with a card, and that's with them until they die.
Senator Plett: I fly every week, sir. Air Canada won't let me on the airplane without ID.
Professor Blais, if I could ask you one quick question as well about the independence of the commissioner, you said that a lot of it was public perception in answer to Senator Batters' question, but how do you say that the commissioner being accountable to the Chief Electoral Officer is any more independent than him being accountable to the Director of Public Prosecutions?
Mr. Blais: The function of Elections Canada is to be above the fray. It is to direct administering an election in which clearly it is crucial for Elections Canada to be completely independent of all the parties and the government. The public understands that very well.
In terms of the Department of Justice, they certainly understand that Justice is a bit different, but given people's suspicions, it is much more difficult in tough decisions to convince Canadians that the Department of Justice is completely independent of the rest of government.
Senator Plett: It is only suspicion and education again.
Senator McIntyre: You may have already answered this question. I wish to review with you the role that the Chief Electoral Officer, the Commissioner of Canada Elections and the Director of Public Prosecutions will be called upon to play under Bill C-23. It is very clear that under the current Elections Act the Commissioner of Canada Elections is serving at the pleasure of the Chief Electoral Officer. He can direct the Commissioner of Canada Elections to carry out certain investigations, to investigate an allegation just like any other Canadian and to investigate any matter he believes was a violation of the law. He will bring these matters to the authority or to the attention of the Director of Public Prosecutions.
Under Bill C-23, we have three different actors. It is like a theatrical play here. We have the Chief Electoral Officer responsible for the administration of elections, the Commissioner of Canada Elections responsible to investigate a wrongdoing, and the Director of Public Prosecutions responsible for laying charges under the Canada Elections Act.
Professor Smith, how do you see this new framework under Bill C-23?
Mr. Smith: As I understand it, it seems to me that the commissioner is moving or being moved more toward the Director of Public Prosecutions. If there are three and he's in the centre, then visually or graphically he's being moved away, if you put the CEO on the left and the Director of Public Prosecutions on the right —
Senator McIntyre: That's right. The Commissioner of Canada Elections is being moved away from the CEO.
Mr. Smith: Yes. That's the way I understand that.
Senator McIntyre: You agree with that?
Mr. Smith: That's my interpretation of what is happening. Do I agree and support it?
Senator McIntyre: I would like your views on it.
Mr. Smith: One of the things we haven't mentioned is that the Chief Electoral Officer is an officer of Parliament. I said earlier about the broadening of electoral boundaries and election finances and so on.
Another feature of Canadian politics or Parliament in the last half of the 20th century was the creation of a number of officers of Parliament, in a special position, kind of independent of. There's a lot of talk about independent officers. One question is independent of whom? In any case, independent officers.
To the degree that the commissioner fell within the Chief Electoral Officer's purview, I suppose generally I would perceive that to be desirable rather than moving under an administrative departmental purview, which seems to bring, realistically or not, an impression of a governmental political influence. He's moving more in that direction. I'm not saying that's the case, but it seems to me that is one interpretation.
Senator McInnis: That's one of the questions I had. It is quite surprising to me. I will give you an example on the matter of the separation of the administration of the election and the investigation and the possible prosecution.
Elections Canada can have complaints against it. It has to be investigated. Currently, the situation is that the commissioner is an employee of the chief elections officer. The chief elections officer could possibly say, "We are not charging; we're not proceeding with this." It is an absolute conflict. The separation of powers, in my opinion, in this bill is one of the best things that we have ever done.
The Director of Public Prosecutions in Canada is seen to be absolutely separate and apart in operation of the law as to whether to proceed with the charge or not. I doubt in any province or national government that you will see anything other than that and that this is totally independent. I want to come to one other point. You can comment on that later.
With respect to the commissioner and the power to compel testimony, police in Canada and commissioners do not have the power to compel testimony. First of all, they're not the judiciary. They're just a vehicle to get to the judiciary. The judiciary are the ones that put people under oath, cross-examine them, et cetera. It is troubling to me that I continue to hear this when, in our system, it simply doesn't happen. The RCMP and the municipal police do not have the ability to cross-examine. If you are going to have cross-examination, it has to be under oath. Where it happens is that when they deem they're going forward, the court has the power to subpoena. Now, the police and the commissioner can go get a warrant. They can get other orders. That's the way the system in Canada and the justice system operates.
This is confusing to me, and that's why I want your comments. How else could you do it? What kind of system are you going to have that is going to compel these people to testify in front of apparently the police and the commissioner?
Mr. Smith: Do you want Professor Blais to speak first? He was addressing this earlier in his comments.
Mr. Blais: I don't know all the technical details. I can tell you that this has been proposed and the commissioner himself has indicated that he lacks the power and should have the power, and the Chief Electoral Officer as well. Clearly they perceive that they don't have all the powers necessary to fully investigate the cases that were presented to them. It makes sense to me that there should be special powers for an extremely special law.
Senator McInnis: I suggest that the last thing we need in Canada is another level of judiciary.
The Chair: We are over time now.
Professor Smith, did you want to respond to that?
Mr. Smith: No, I don't think so.
The Chair: Thank you both very much. We appreciate your appearance before the committee today.
Members, we will meet back here at 10:30 tomorrow morning to wrap up our pre-study on Bill C-23. We will be hearing from a number of academics and the Congress of Aboriginal Peoples. Then we are setting side a brief amount of time to discuss some other matters, which we will, in all likelihood, do in camera.
(The committee adjourned.)