Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12, Evidence - June 5, 2014
OTTAWA, Thursday, June 5, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-23, An Act to amend the Canada Elections Act and other acts and to make consequential amendments to certain acts, met this day at 10:35 a.m. to give clause-by-clause consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
We are here today for our second and final meeting on Bill C-23, the fair elections act. This bill proposes amendments to numerous aspects of Canada's electoral law, along with related amendments to the Telecommunications Act, the Electoral Boundaries Readjustment Act and the Director of Public Prosecutions Act, among other acts.
Before we begin, I want to remind those watching this meeting that on April 7, 2014, the committee began a pre- study into the subject matter of Bill C-23. Pre-studies are a unique feature of the Senate that allow committees to get a head start on their examinations of a bill and to provide input to the House of Commons before the bill is introduced in the Senate.
With that in mind, the committee held eight meetings and heard from 27 witnesses on the pre-study. On April 15, the committee tabled an interim report that included a number of recommendations for possible amendments. The bill we have before us today is a product of some of those recommendations, and our task now is to study the amended bill.
A quick note to members: We do have officials from the Privy Council Office with us to answer any questions that may arise. I'd ask them, if they wouldn't mind, to join us at the table. We have Natasha Kim, Director of Democratic Reform; and Mark Chénier, Senior Privy Council Officer, Counsel, Democratic Reform.
Senator Baker: Mr. Chairman, with the witnesses taking their position from the Privy Council Office, I want to correct something that was discussed yesterday in the committee and to ask Mr. Chénier to verify it.
It is really to apologize to Ms. Kim and Mr. Chénier in that they had said that the matter of Rose Henry, et al. v. Attorney General of Canada, et al. had not been approved by the Supreme Court of Canada. The notice of motion was put in on April 1, and I had said on the record, because I had it in case law, that Rose Henry, et al. v. Attorney General of Canada, et al. was approved by the Supreme Court of Canada for a hearing on May 15. Of course, the witnesses said, "No, that's incorrect."
They are correct, but I want to say why. There were two cases of Henry v. Canada that came from the British Columbia Court of Appeal for which a notice of hearing was requested on April 1 — both were on the same day. So I was reading the condensed version of Carswell WestlawNext, which said Henry v. Canada — Supreme Court of Canada affirmed for the appeal. Of course, Rose v. Henry has not been approved for a hearing by the Supreme Court of Canada, but Alfred v. Henry has been approved.
So I just wanted to say that the officials were correct. Mr. Chénier, that's as you understand it?
Mark Chénier, Senior Privy Council Officer, Counsel, Democratic Reform, Privy Council Office: That's correct, Mr. Chair. Actually, I should return the favour to Senator Baker, because I'd like to correct the record about one of the answers I gave the senator. He was quite correct in saying that the Chief Electoral Officer had made a recommendation to increase the limitation period from 7 years to 10 years; he did that in his 2005 report to Parliament. The senator is correct that he did cross-examine Mr. Kingsley on that issue. Also appearing with the Chief Electoral Officer was the former Commissioner of Canada Elections, and Mr. Corbett indicated that 10 years is a very long time and that it would only be used for serious offences — that the courts would likely not look favourably upon institution of charges for a minor offence after a period of 10 years.
Senator Baker: Now we have the corrected record, Mr. Chairman.
The Chair: Apologies all around. Hopefully that's a good sign of things to come.
Before we continue, I want to remind senators of a number of points. If, at any point, a senator is not clear where we are in the process, please ask for clarification. Because of the length of the bill, the steering committee proposes that we consider the clauses in groups of 10. If there are any clauses within each grouping for which a member has an amendment or any other issue, please let me know. We will open up that grouping to allow the member to speak. Following the review of all of the clauses in that fashion, any clauses that have been postponed or stood would then be considered, one after the other, in the order in which they were deferred.
When more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the pages and/or the lines of a clause.
Some amendments may have consequential effect on other parts of the bill, and staff will be keeping track of where subsequent or consequential amendments will need to be moved and will draw our attention to them.
Finally, again, if there's any uncertainty as to the results of a voice vote or show of hands, the most effective route is to call for a roll call. Of course, you're aware that a tied vote negates the motion in question. Any questions or concerns at this point, before we go to clause-by-clause?
Senator Moore: With regard to the stipulation here that it's agreed, with leave, that the remaining clauses be considered in groups of 10 and, first, shall clauses 2 to 10 carry, we have an amendment for clause 10. So I don't know if you want to delete that. The groups may work, but there will be instances where, within the grouping, we'll have an amendment. I don't know how you want to handle that.
Senator Baker: Mr. Chair, I have given to the clerk a copy of amendments that I, Senator Moore and Senator Joyal wanted to put forward. I wonder if the clerk could make sure that we don't make a mistake here and go over a clause that we have to revert back to, if she would keep us informed.
The Chair: She'll do that. If there's an amendment within a grouping, just let us know. We'll stop. We'll put it on the record, and we'll move on from there.
Senator Moore: We just interrupt the grouping and come to you?
The Chair: Yes.
Senator Moore: All right; thank you.
Senator Baker: Mr. Chair, let me just point out that there are four amendments, really. That's all, but the second amendment, to clause 46, would have consequential amendments, as the clerk pointed out to me, down the road. That's why you would see a lot of amendments there, but there are actually only four questions there. Thank you.
The Chair: Okay. We're all set.
Is it agreed that the committee proceed to clause-by-clause of Bill C-23?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed, with leave, that the remaining clauses be considered in groups of 10?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clauses 2 to 10 carry?
Some Hon. Senators: Agreed.
Senator Moore: I have an amendment for consideration of the committee that clause 10, which this relates to the Treasury Board approval to pay remuneration for temporary employees with electoral expertise, amending section 21, should be amended to strike out the requirement that the Treasury Board approve the remuneration and expenses of persons with technical or specialized knowledge engaged on a temporary basis by the Chief Electoral Officer.
The Chair: That's on the record now.
Shall clauses 2 to 9 carry?
Hon. Senators: Agreed.
The Chair: Carried. Clause 10 we will stand postponed.
Shall clauses 11 to 20 carry? We'll take our time and wait for you here.
Senator Baker: The clerk will verify that there's nothing there. The next one is 46, I think.
The Chair: Shall 11 to 20 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 21 to 30 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clauses 31 to 40 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clauses 41 to 50 carry?
Senator Moore.
Senator Moore: On this one, chair, we have another amendment for consideration. Do you want me to read this through, chair? The amendments have been distributed, but I can.
This is with regard to vouching. This deals with subsections 48(1) and (2), clauses 49, 51, 52, 53 and 54. These all pertain to the vouching process.
Senator Baker: Clause 46, now, in the present bill.
Senator Moore: Yes. The clauses of the bill that repeal the provisions that enable a voter, without the prescribed pieces of identification, to vote or to register to vote should be struck from the bill. That pertains to subclauses 48(1) and (2), clauses 49, 51 and 52, subclauses 53(1), (3) and (5), and clause 54.
Senator Baker: Mr. Chair, this clause and the consequential amendments that are included in this group accomplish the following: They remove everything that's in this bill that changes the authority under the existing act for vouching. Section 143(3), of the present act, says:
An elector may instead prove his or her identity and residence by taking the prescribed oath if he or she is accompanied by an elector whose name appears on the list of electors for the same polling division and who. . .
(b) vouches for him or her on oath in the prescribed form.
What these amendments do, as Senator Moore says, is simply to keep the law the way it is today and not to require anything more than the present law requires, which is that you can be vouched for without any pieces of identification, as long as the person vouching for you meets the requirements under the act. It's to maintain the existing system and everything that's in the act that is presently the law in Canada.
The Chair: Okay. We will return to that. At this point, shall clauses 41 to 45 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Any others in 46? Senator Baker?
Senator Baker: This is amendment L3, which is the recognition of the voter identification card. Clerk, that's the one that's caught in between those. So the voter identification card is our third amendment, the ability to keep the existing voter identification card — this was your proposed amendment, Senator Moore — as a valid piece of identification. The clerk tells me that this is now captured by section 47 and 46 as well. You're going to have to put that on the record.
Senator Moore: The Chief Electoral Officer's authority to authorize the voter information card as a valid piece of identification as one of the alternatives to a government-issued piece of photo identification should be restored.
That's clause 48(3), amending section 143(2.1) —
Senator Baker: In the original act.
The Chair: We'll move on. Shall clauses 47 to 50 carry?
Hon. Senators: Agreed.
The Chair: Carried.
The clerk is advising me that we can move to 48 and 49. Shall clauses 48 and 49 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Baker: We're making sure, colleagues, we don't approve something that we really don't want to. These are the consequential amendments.
The Chair: Shall clauses 52, 53, 54, 55, 56, 58 and 59 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator Joyal: Could you repeat the number? The reason is I don't want one left over and have us approve the bill with one clause not being voted on, and the consequential amendments.
Shaila Anwar, Clerk of the Committee: There are consequential amendments to 47, 50, 51, 57 and 60.
The Chair: Shall clauses 61 to 70 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 71 to 80 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 81 to 90 carry?
Hon. Senators: Agreed.
The Chair: Clause 93 is a possible consequential amendment.
Shall clauses 91, 92 and 94 through 100 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Clause 93 will be stood down.
Shall clauses 101 to 110 carry?
Senator Moore: We have an amendment to clause 108.
The Chair: Do you want to stand that down or do you want to read it into the record now?
Senator Moore: I'll just read this one sentence into the record, if I could, chair.
The Chair: Go ahead.
Senator Moore: The bill should grant the Commissioner of Canada Elections the power to apply to a court for an order to compel witnesses to provide evidence to assist in an investigation of a violation of the Canada Elections Act.
The Chair: All right. Shall clauses 101 to 107 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 109 to 110 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 111 to 120 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Clauses 121 to 130 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 131 to 140 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 141 to 150 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 151 to 158 carry?
Hon. Senators: Agreed.
The Chair: Carried.
We'll pause right here and return to deal with the amendments.
Clause 10, amendment L1, Senator Moore, do you want to lead off with that?
Senator Moore: I move:
That Bill C-23 be amended in clause 10, on page 11, by replacing lines 32 and 33 with the following:
"any other Act of Parliament, and he or she may fix and pay".
This is page 11, chair, and it's lines 32 and 33.
The Chair: Okay. The floor is yours.
Senator Moore: As I mentioned earlier, chair, and as we went through this, there is currently a Treasury Board approval required to pay remuneration to persons who might be temporarily hired by the Chief Electoral Officer, and this would remove that requirement for approval by the Treasury Board.
The Chair: Any further discussion on this? Senator Batters, did you have your hand up?
Senator Batters: I would note on this one that this type of requirement is a requirement for the Auditor General of Canada, just of note to this committee.
Senator Baker: Requirement for the . . . ?
Senator Batters: The Auditor General of Canada does have this type of requirement for such Treasury Board approval.
The Chair: Senator Frum?
Senator Frum: Yes, so given that, it does beg the question why the Chief Electoral Officer should be living outside the rules of the Treasury Board, when so many other branches or agents of government have to follow them. I'd be interested to know why there should be an exception.
Senator Moore: This is the road to process here. We've been trying to have the Chief Electoral Officer be outside of, I guess, political persuasions so that he truly is an independent officer and can do his job in an unfettered manner.
Senator Frum: You're saying now the Auditor General who has to follow these rules is not independent?
Senator Moore: I didn't say that.
Senator Frum: It would follow logically from your argument.
Senator Moore: I don't think so.
Senator Batters: Sorry. I actually made an error on that. I was of the opinion that the Auditor General was on that list. That particular office isn't, but there are many other commissioners who are: Commissioner of Official Languages, Commissioner of Lobbying, Public Sector Integrity Commissioner, Information Commissioner, Privacy Commissioner. Those ones do have that Treasury Board approval. I'm sorry about that. But all of those are certainly agents that we would want to have that type of independence from Parliament as well.
Senator Baker: The Chief Electoral Officer made a very good case for not having to seek Treasury Board approval on these temporary and sometimes emergency matters that arise during the carrying out of his duties, and that is why he, the Chief Electoral Officer himself, objected to this provision in this new bill proposed by the government. I would certainly agree with him, and I will vote for the amendment.
Senator Joyal: I have sat on Treasury Board in my other capacity, not because I was Treasury Board chairman, but because I was parliamentary secretary to the Treasury Board. There are reasons, which I want to outline, which is the fact that Parliament is in conflict of interest in relation to the activities of the CEO. Because, of course, political parties have a majority say on decisions and to submit the decision of the CEO to a majority of Parliament in relation to the performance of his mandate is, in my opinion, inimical to the independence that the CEO should maintain. There is no question that when there is a Treasury Board approval there is a political input into the decision. As such, I understand the arguments that the CEO has put forward that he wants to maintain his independence from Parliament in the operation of his mandate.
The Chair: Is there any further discussion on this amendment?
[Translation]
Senator Rivest: I have a question for Senator Baker. You mentioned not having to go before Treasury Board if there is an emergency. However, your amendment deals with a recourse to Treasury Board standards. Why not have said that Treasury Board has the authority, unless the Chief Electoral Officer believes there is an emergency?
[English]
Senator Baker: I sat as a permanent member of Treasury Board, and it is — I shouldn't say — a "cumbersome process," and I don't think it's a political process. It certainly is an impartial process, but it is a process. That's why the Chief Electoral Officer put forward his points very explicitly. He particularized his request that the system be maintained the way it is, and that he not have to subject these requests to Treasury Board.
Senator McIntyre: I agree. I raised the issue of the Treasury Board yesterday. The way I look at it is that Treasury Board would have some input. The reason why he has to have some input is to make sure that an appropriate rate that is being used. That's why this act has to apply to this specific situation.
The Chair: Anything further?
Senator Moore: I have just one other comment, chair, as we try to convince our colleagues to support this. I have never been on Treasury Board, and I have had no involvement, so I don't know how it works. But it seems to me that time is of the essence; timeliness is important in election processes and I don't know if an application by the Chief Electoral Officer would be received by the Treasury Board and acted upon immediately or, pursuant to Senator Joyal's intervention, would it be held for political reasons or whatever? I don't know. I don't know if there's a requirement for Treasury Board to act quickly on such a request.
The Chair: I don't know if that's something our officials could respond to or not.
Is it the sort of matter you would have familiarity with?
Senator Baker: Just a clarification, Mr. Chair. What I meant was I served on the cabinet committee on Treasury Board; we had to approve everything Treasury Board did. That was my involvement in it.
It certainly is a process, and I think that was the main objection. I don't know if the witnesses have any comment on that.
Mr. Chénier: Mr. Chair, there would be probably a willingness by the Treasury Board to hear emergency matters more quickly.
But my understanding of the way this is actually applied is that preapproval is given for rates for certain services. In other words, they adopt in a general manner certain rates that are preapproved, and if they're within that rate, you don't need to make a submission to the Treasury Board.
In addition, in a case of emergency, there are other authorities that the Chief Electoral Officer could use to get assistance in an emergency basis, such as hiring casual employees or other avenues that are available in the act.
Senator Batters: I thought Mr. Chénier's answer was helpful. I have not had very much, if any, experience in dealing with the Treasury Board of Canada Secretariat, but with the Saskatchewan Treasury Board when I was the justice minister's chief of staff, I know that it's very much a body that deals with requests in a timely way as a matter of course, because most of what they're dealing with has to be done on a timely basis. At least, that's how it worked in the great Province of Saskatchewan.
Senator Joyal: Except during the period of an election campaign. If there's an emergency, the Treasury Board does not sit during the election campaign or any weeks preceding the election or the call of the election, because there is a convention that the government doesn't incur different expenses than the ones that have been regularly approved. That's the only nuance I would put to your statement.
The Chair: Anything additional? All right.
Shall the motion in amendment L1 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: The "nays" outweigh the "yeas," so the motion in amendment is defeated. Shall clause 10 carry?
Some Hon. Senators: On division.
The Chair: Carried on division.
We move down to clause 46. That is amendment L2.
Senator Moore: We move:
That Bill C-23 be amended in clause 46,
(a) on page 24, by deleting lines 42 to 44;
(b) on page 25,
(i) by replacing lines 1 to 9 with the following:
"46. (1) Paragraph 143(2)(b) of the Act is",
(ii) by replacing line 16 with the following:
"(2) Subsection 143(2.1) of the Act is",
(iii) by replacing lines 25 to 31 with the following:
"(3) Subsection 143(3) of the Act is replaced by the following:
(3) An elector may instead prove his or her identity and residence by taking an oath in writing", and
(iv) by replacing line 43 with the following:
"(b) vouches for him or her on oath"; and
(c) on page 26,
(i) by replacing lines 6 to 9 with the following:
"(iv) they have not vouched for another elector at the election, and
(v) they have not been vouched for by another elector at the",
(ii) by replacing line 11 with the following:
"(4) Section 143 of the Act is amended by", and
(iii) by deleting lines 16 to 22.
The Chair: You have it all on the record, Senator Moore?
Senator Moore: That is it.
Senator Baker: You're missing this right here; this is also clause 46, page 25.
Senator Moore: That's right, but —
Senator Baker: Oh, that's L3. Sorry.
The Chair: Do you wish to elaborate, Senator Moore?
Senator Moore: I don't know, chair. We made our points earlier about the right of every citizen to have a vote, and we think that the removal of the vouching system will be harmful and will result in a loss of exercise of franchise by a lot of people — significantly more than the five or six that Senator Plett alluded to yesterday. We think that that should remain.
The Chair: All right. Senator Frum.
Senator Frum: Chair, as you said at the introduction of this process, the Senate did have a pre-study on this bill, and we did discuss vouching at great, great length. Indeed, we did make an important amendment to address the concerns that we heard here at the committee. All of us here on this side are satisfied at this point. We heard from PCO officials yesterday who helped bolster this view that the law, as it is written now, does provide the access and provides for the right of every citizen to vote, but it puts in safeguards to protect the integrity.
We had this debate here at great length. To make any changes to the bill as it is now written strikes me as inappropriate, given the fulsome debate we have had on this and given what is an outcome, namely that the bill reflects the input of this committee already.
Senator Joyal: I want to commend the honourable senator for the part she took in having the original clause amended. I want to recognize that on the record.
Senator McInnis: Hear, hear.
Senator Joyal: I still have some restraint in terms of the limitations of the vouching for one person in the context that I explained yesterday. I insist on the record on this because this issue might be debated in the Supreme Court in the months or years to come, especially in the Henry case, if the petition is accepted.
I'm of the view that, in certain circumstances, vouching should be open to more than one person, as in the example I gave yesterday.
The court will have to pronounce on this eventually. I am of the view that it could be open. That's why I think the amendment as it stood before, in my opinion, was a better ground to argue in the court. I would argue the contrary in the court if I would have to intervene. That's why I think that to come back to the original proposal is more secure in relation to the previous decision of Henry. Those are my views, Mr. Chair.
Senator Frum: I would like to point out that vouching, before Bill C-23, was always about one person vouching for one other. That principle remains, and that is unchanged from before.
Senator Joyal: I agree with the comments made by the senator. However, as I said, I have a nuance to the act that has been adopted before regarding this question in the court.
If I had to take a stand personally in the court in relation to the constitutionality of the act as it stood before, I would have to question the constitutionality of it. I would be of the opinion that it is unconstitutional and a blank prohibition for only one person. However, I understand there are some circumstances where it should be allowed. That's essentially the position I'm arguing.
Senator Batters: I agree with Senator Frum that we have discussed this at great length. I was routinely asking witnesses about different attestations of residence. To me, that's a valuable tool that is frequently used and used with many people in certain groups that have difficulty perhaps accessing identification, such as people in long-term care homes, people in student residences and people on First Nations reserves. Those are valuable tools that can be used for many more than one person. That is an essential part of the whole fail-safe method.
There something else I wanted to point out. My colleagues on the other side can correct me if I'm incorrect, but to keep the vouching law as they propose, the way it is today, their amendments would not be providing an audit process, whereas the process that our government is trying to institute is to allow for vouching as to address only, but keeping track of who is vouching so that they would be able to go back and determine later on if it was appropriate vouching or if anything incorrect was going on. Is that right?
Senator Baker: Yes, that is basically correct.
The problem here, colleagues, is that we do have our Charter that says that every citizen has a right to vote. To my recollection of reading the court decisions, when the question was raised that perhaps somebody was prevented from voting, the court would always address the question this way: If you require anything other than what the existing law is, the fail-safe was that somebody else could vouch for you and that saved section 3 of the Charter. If you require further identification, then there is a balancing act that must be made by the court. That is, for example, if there is widespread fraud; is there any evidence of that? Is there any evidence that any person was prevented from voting?
I can still visualize, with this new act of requiring two pieces of identification — and I thought the act was one, but I discovered yesterday it was actually two — that an occasion could arise. Some of the examples given by the Chief Electoral Officer were of parents who were visiting their children and of having that identification if they were in another part of the country and they were trying to vote; and of somebody who is somebody's partner and all of the information that comes to that home comes to only one of the two partners, and the other person just doesn't have two pieces of ID.
We have the Supreme Court of Canada judging whether or not the superior court is correct, the Court of Appeal is correct in British Columbia, and in both of those cases the act was saved because of the fail-safe, as Senator Moore pointed out.
The fail safe was this provision that we have in the act which says, look, if you have somebody else who is a registered voter in that polling division who can prove on oath what you are saying, and you provide on oath what you are saying, and that person can only vouch for one person, and so on, then, as I read in the act, you could vote. That was the fail-safe that every court has looked at. That's the Crown's position. That's the Department of Justice's position: This is our fail-safe right now. What we're doing is that we're passing a law that goes beyond that and makes further requirements of the person being vouched for and their right to vote under the Charter.
Senator Joyal is right. Why go down the path? It is a dangerous path to go down, because if the legislation is judged to be unconstitutional in the weighing provision as to whether or not it is demonstrably justified under section 1 of the Charter, you will have to go down the road with this legislation. The courts will now have to address that question all over again under these new, restricted rules.
Senator Plett: I don't want to prolong the debate here unnecessarily. As Senator Frum has said, this has been discussed at length and debated at length. However, I want to make a comment about what Senator Joyal said today and what he said yesterday in the example that he gave.
The example — and, correct me if I am wrong — is that three individuals in one house had a landlord living upstairs, or a next-door neighbour, and the next-door neighbour wouldn't be able to vouch for all three of them. It's a real stretch that three Canadian citizens living in one house wouldn't know three other Canadian citizens, maybe the neighbours on the other side of the house. They could get one from that house, one from the house on the left, one from the house on the right and one from the house across the street. I don't think there would be situations where this wouldn't happen.
We know that, when elections are called, they aren't called today for an election tomorrow. I asked the witness yesterday whether the new regulations that we were putting in place here would, in his opinion, disallow any person in this country — the five or six, as I suggested, that couldn't vote under the previous system. Would they now be disallowed from voting? He said that, with the rules and the notifications that were sent out and so on, and given the 36 days of an election campaign and even the time period before that, if somebody has a desire to vote, they will have adequate time to get every piece of identification that they need and adequate time to get at least one person to vouch for each and every person.
As far as the constitutionality is concerned, again, chair, with the highest respect for my friends on the other side, they have argued constitutionality on almost every piece of legislation they have opposed, along with many of the lawyers who have been here. It is surprising how often the bills that we have brought forward stand the test of constitutional challenges.
This one will probably be challenged, as every other bill is that we bring before this place, so I am certainly prepared to accept the fact that this will also stand the test of the constitutionality.
Senator Joyal: There are two points I want to put on the record.
The first one is that we didn't have any proof that the present system has led to abuse. In fact, when we heard the CEO and the other witnesses, there was no proof that the former system, or the present system, led to a distortion of the electoral process. It was more administrative than substantial in terms of the end result of the vote. I think that is a very important item to take into account.
As to the other point raised by my colleagues and Senator Plett, there are all kinds of situations we can imagine whereby limiting the vouching to one person could lead to unfair result.
Let's take the example that I knew of myself when I was a member in the other place. There was a long-term seniors' home. There were under 26 persons living there, in bed, most of them, most of the time, with no parents. There was a nurse responsible for each floor of the senior's home, and she could not vouch for five or six of them living in the same room in that long-term care residence.
It seems to me that there are cases like that that should be allowed, because she had to pick which one, among the six patients in that room, she would vouch for to allow her to vote. For some people who are caught in that situation, voting is sometimes the only link they have with the outside world.
That is why I think that it is a situation that, in my opinion, needs to be reflected in the legislation. As Senator Baker has said, the right to vote belongs to a citizen. Once you are a citizen of a country, unless the limits that you put on the exercise of the vote are rational on the basis that they would lead to an abuse of the system, in some cases, the system should reflect those particular circumstances.
That's why I strongly feel that this issue will certainly be revisited by the court, not as an abuse of the court. I don't think we should see the constitutionality of the bill as being an abuse of the court system. When there is a constitutional argument raised, it is because a person has a reasonable belief and conviction that his or her rights have not been respected. That's essentially why we live in a democratic system.
I don't think that, around this table, when an issue of constitutionality is raised, it is an abuse of proceedings. The courts are there to adjudicate on that. As our witness will testify today, the courts are there to receive petitions and to adjudicate on the seriousness and the reasonableness of the petitions to be heard.
I don't make a big fuss with the argument that, on this side, we raise the issue of constitutionality too many times. As a matter of fact, if I were to produce a report to this committee of how many times, on this side, we have raised constitutionality and how many times we were vindicated by the court, maybe my friends on the other side would be impressed by the number of the decisions.
Senator Batters: On a couple of points that Senator Joyal is bringing up, he was indicating there was no proof. I would say that there was no proof because there was no method of tracking the vouching before. The Neufeld report talked about tens of thousands of irregularities. It has been a little while since I looked at that, but I think it was in the order of 30 or 40 or something like that.
Senator Frum: Forty-two thousand.
Senator Batters: Thank you, Senator Frum. Forty-two thousand irregularities. We had no way to track who was vouching for whom, so we couldn't go back later and figure out whether there was abuse there or not.
Under the Liberals' proposed amendments, we would still have no way to track it. That's why I don't find that acceptable. The example Senator Joyal was just bringing up about the nurse in the long-term care home not being able to vouch for more than one resident is the exact sort of case that would be covered by an attestation of residence from that long-term care home. The administrator of the home could provide such a document that would provide that type of identification for many, many residents of the home, many more than five.
Senator Frum: I would like to add, on the question that there's no proof of vouching abuse, we need to remember that the result of the Etobicoke Centre election was overturned. That was a riding that was and still is now held by a Conservative member. It was a Liberal candidate who made the challenge, and it was very much his assertion that it was the abuse of vouching that led to an inaccurate result. The lower court of Ontario agreed with him.
The Liberal leader at the time, Bob Rae, made strong calls to change the Canada Elections Act. He was clearly unhappy with the vouching system, as was the Liberal candidate. This idea that there is no vouching fraud in Canada or that there has never been is just demonstrably false. It is also important to note that the polling shows that 87 per cent of Canadians agree with the approach that is in Bill C-23 on the issue of identification. This is something that is very popular with Canadians, because I think it does reflect common sense that voting is protected when people have to show ID.
I'm very satisfied that the bill, as it is written, is appropriate.
Senator Plett: Absolutely.
Senator Moore: Just one comment, chair. Senator Frum, is that the Etobicoke case that you are referring to? I should have brought that decision with me. The judge made it clear that he did find fraud, but he said it wasn't enough, in his opinion, to upset the election.
So the system was working. I think the plaintiff was right, and the judge said, "Well, yes, you are right, but it is not enough." I don't know what "enough" is, but he did say that.
Senator Plett: I would like to ask Senator Moore whether some fraud is acceptable.
Senator Moore: I don't think any is. I think he should have thrown the election out.
The Chair: Is there any further discussion on this before I call the vote?
Senator Baker: Mr. Chair, this vote will decide, then, all of the consequential amendments that you have before you.
The Chair: That's right.
The Chair: Shall the motion in amendment L2 carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: The motion in amendment is defeated.
Senator Joyal: Can we have a registered vote on that one?
The Chair: Yes, we can. A roll-call vote. Go ahead.
Ms. Anwar: The Honourable Senator Runciman?
Senator Runciman: I vote in opposition to the amendment.
Ms. Anwar: The Honourable Senator Baker, P.C.?
Senator Baker: Yes.
Ms. Anwar: The Honourable Senator Batters?
Senator Batters: No.
[Translation]
Ms. Anwar: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
Ms. Anwar: The Honourable Senator Dagenais?
Senator Dagenais: No.
[English]
Ms. Anwar: The Honourable Senator Frum?
Senator Frum: No.
[Translation]
Ms. Anwar: The Honourable Senator Joyal, P.C.?
Senator Joyal: Yes.
[English]
Ms. Anwar: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Anwar: The Honourable Senator McIntyre?
Senator McIntyre: No.
Ms. Anwar: The Honourable Senator Moore?
Senator Moore: Yes.
Ms. Anwar: The Honourable Senator Plett?
Senator Plett: No.
[Translation]
Ms. Anwar: The Honourable Senator Rivest?
Senator Rivest: Yes.
[English]
Ms. Anwar: Yeas, 4; nays, 8.
The Chair: The motion in amendment is defeated.
Are there any other amendments to clause 46? Senator Moore?
Senator Moore: On page 25, lines 21 through 24, I move:
That Bill C-23 be amended in clause 46, on page 25, by replacing lines 21 to 24 with the following:
"document may be authorized, regardless of who issued it."
The Chair: Thank you. This is amendment L3?
Senator Moore: Correct. That is a continuation of this effort to maintain the vouching system, Mr. Chair; and I think, with regard to the voter identification card, its use and its recognition as an ID piece.
The Chair: Do you wish to add to that?
Senator Moore: I have nothing further to add to it.
The Chair: Anyone else? Senator Plett?
Senator Plett: Again, very clearly, the voter identification card was something that has been found to be not a good piece of identification, if for no other reason than that you can go behind many of the polling stations or behind many apartment blocks and pick voter identification cards out of the garbage and use them to go and vote. So this is even worse yet than the vouching, to be able to just simply go and pick a voter identification card out of a garbage can somewhere, go to a polling station and use that as identification. So I'm certainly opposed to that.
Senator Batters: On this, we had testimony from Elections Canada officials talking about the 10 per cent error rate in voter information cards; and it's definitely not a voter identification card, because of that significant error rate. Even with major efforts put into targeted revisions, that still goes down to 7 per cent. Given the number of voters, that was equating to still almost 2 million mistakes on these kinds of cards. That's way too much error rate in order to consider this a valid form of identification.
Senator Frum: I'd like to add that in the Neufeld report, he spoke about when irregularities and errors get into a rate of 10 or 11 per cent, as you have — he was referring to registration irregularities, but I'm sure it would apply here as well — that is an unacceptable level of error that, again, will lead to results that do not have integrity. I would refer you to the Neufeld report, when he talked about how Canadians would be alarmed if they knew that any of our processes had a 10 or 11 per cent error rate, as the voter identification card has.
The Chair: Is there further discussion on this? We'll move on to the vote. Senator Joyal?
Senator Joyal: According to the government, now any citizens who would want to vote will have to present two pieces of identification. Before, you could go with the voting card, but now if you go with the voting card, you would have to have another piece of identification with your address on it. In other words, it seems to me that there is now a safety valve to the use of the voting card, which is the second piece of identification. That's why I think the limit that has been put on the identification card was right by adding another piece, but do not exclude it totally from being one of the two available. That's why I think this amendment, in my opinion, has a reasonable base.
Senator Batters: On that, that would be two pieces of identification for identity, not having to show residence. If you have a piece of identification that shows your name and address on it, a government-issued piece of identification, you only need one piece of identification. If you don't have that type of identification, then there are different combinations you can have. But the two pieces of identification that are being required now for identity, if you're going to need vouching for residency only, there are many different options for that: a health card, Social Insurance Number. For people who are receiving social assistance would receive that, there's their mailing they received from that, their statement of benefits or Old Age Security or things like that. All of these types of things could be used to show identity, many different types of forms.
So, in my view, especially given the evidence of Professor Lee, who testified before us, there are many types of identification that can be used for this, and I don't think it's onerous to find two.
The Chair: Anything additional? We've exhausted that.
Shall the motion in amendment, L3, carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: The amendment is defeated.
Shall clause 46 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
An Hon. Senator: On division.
The Chair: Carried on division.
Clauses 47, 50, 51, 57, 60 and 93, shall they carry?
Hon. Senators: Agreed.
The Chair: Carried.
Then we're going to clause 108.
Senator Moore: The one on clause 93, that was part of the consequential amendments?
The Chair: That's right.
Senator Moore: That's been done.
Clause 108. This is L4, chair. I'll read through this. It's longer than the others. I move:
That Bill C-23 be amended in clause 108, on page 227, by adding after line 19 the following:
"510.01 (1) If, on the ex parte application of the Commissioner or the authorized representative of the Commissioner, a judge of a court described in subsection 525(1) is satisfied by information on oath or solemn affirmation that an investigation is being conducted under section 510 and that a person has or is likely to have information that is relevant to the investigation, the judge may order the person to attend as specified in the order and be examined on oath or solemn affirmation by the Commissioner or the authorized representative of the Commissioner on any matter that is relevant to the investigation.
(2) No person shall be excused from complying with an order under subsection (1) on the ground that the testimony required of the person may tend to criminate the person or subject the person to any proceeding or penalty, but no testimony given by an individual pursuant to an order made under subsection (1) shall be used or received against that individual in any criminal proceedings that are subsequently instituted against him or her, other than a prosecution under section 132 or 136 of the Criminal Code.
(3) The Commissioner or the authorized representative of the Commissioner may administer oaths and take and receive solemn affirmations for the purposes of examinations pursuant to subsection (1)."
That is the motion, chair.
We spoke to this at length — I did and others around the table did — of the result that happened, the robo-call, the abuse of sending people to the incorrect polling stations. I can't even think of the mind that would come up with that kind of an idea; it's so upsetting. The commissioner should have the opportunity, in a timely way, in the course of the election contest, to compel evidence. I don't think it's something that should be deferred through the usual prosecuting process, which would take sometimes years. I think it's something that should be dealt with immediately and proven to be right or wrong by the commissioner from the evidence that he or she receives; that the matter be dealt with; that the public know whether or not this has happened; and that the accused would know that he or she is cleared of any allegations against them.
That's my position, chair, and I would urge others to consider this favourably. It's very important.
The Chair: Does anyone else wish to speak to this? Senator Baker?
Senator Baker: Yes, Mr. Chairman. I had a role in deciding the wording of this amendment. I think this is the exact wording that's taken from the Competition Act.
Senator Moore: Yes.
Senator Baker: It's the Competition Act wording.
At first glance, I preferred the wording of the Auditor General Act. In the Auditor General Act, it is just one sentence. It says that the Auditor General of Canada shall have the powers of a commissioner under the Inquiries Act. In other words, a commissioner under the Inquiries Act has exactly those same powers. You see it right throughout legislation. All professional organizations that are instituted by provincial law or federal law — if you look at all of your organizations, your doctors, lawyers, accountants and so on — whenever there is an inquiry or a disciplinary proceeding or investigation under any of these professional organizations, you are compelled to testify. Under the Inquiries Act of Canada, there is, and the same applies provincially, but the wording was selected from the Competition Act.
I know the suggestion is made that it gives the Commissioner of Canada Elections a power that a police officer does not have, and that's absolutely correct. Senator Dagenais would tell you, from his 30 years of experience arresting people, that he certainly doesn't have that power, but it is in a different context.
It's almost like apples and oranges; not completely, but it is somewhat similar to that. We have other protections under the law. A police officer has the power of an investigative detention, for example, but rights to counsel must be given, based on a suspicion.
So it's not exactly the same thing. What the commissioner is requesting under the Canada Elections Act is to have the same power of a similar investigative authority recognized in Canada under similar legislation and recognized in the provinces under similar legislation, and that's why I support Senator Moore's amendment.
Senator Batters: On this one, I don't agree with the amendment because I think that this is a well-flushed-out version of what the Liberal senators opposite put forward as an amendment when we conducted our extensive pre-study, and they proposed a particular amendment on this one. We debated it at length as we heard many of the witnesses discuss the pros and cons for this type of an amendment.
I was persuaded by what Senator Baker was just talking about, when we were hearing about this at committee, that police officers do not have this type of power. I guess I see it a little bit less so. I don't think it is apples and oranges, because if the Commissioner of Canada Elections does an investigation, then the outcome of that investigation, if they find wrongdoing, can be a criminal charge. Of course, that's the same thing as for a police officer.
So, I think giving them the power to compel witnesses to give testimony would not be appropriate in that light.
Senator McInnis: I spoke to this before when it was raised in committee. We have to be mindful of the fact that we are being asked to give the commissioner pretty much the responsibility of a judge, in the sense that he or she will have the right to cross-examine, under oath, some witness. Presumably the witness will have to have a lawyer present, which would only be fair. What we are doing here, we are setting up another level of the judiciary. That's essentially what we're doing.
The RCMP, municipal police and so on carry out investigations. The commissioner's role is to carry out investigations. We should be mindful as well that the commissioner now is housed in the Director of Public Prosecutions, has the right to discuss, and so on. At some point, if charges are laid — and quite often charges are laid without all the evidence — then the witness can be subpoenaed by the Director of Public Prosecutions.
For me, and with respect to Senator Baker's comments about commission of inquiry, a commission of inquiry is quite different. Quite often, any time you act under that particular piece of legislation, it is an ominous incident, something analogous to the Commission of Inquiry into the Westray Mine Tragedy. A lot of facts are out there and it's quite different. There is a lot of evidence, and it's more to bring about a resolve, to bring about some kind of solution so these things will not happen again. I don't think it's a good analogy.
For me, it's just a no-brainer. You just do not give the commissioner and the RCMP the right to carry out the judicial function that a court of law should do.
Senator Joyal: I think we're not giving the commissioner the capacity of a judge. We are giving the commissioner the opportunity to get an authorization from a judge. It's quite different. We're not giving, per se, the commissioner all the powers of a court of justice. That's not at all what it says. It says that a commissioner be authorized by a court. So a court will have to listen to the arguments and be convinced that there are sufficient elements of evidence in front of it to be convinced that such a procedure should be allowed.
Furthermore, the second paragraph says quite clearly that any testimony given to the commissioner may not be used in any criminal proceedings. So the rights of the person are still protected under any criminal proceedings. It seems to me that the safety valve exists to prevent an abuse of the rights of anybody who is accused.
The person will have, first of all, the capacity to be heard by a judge; and second, any testimony that that person may be called to give could not be used or received against that person in any criminal proceedings.
It seems to me there are various levels of the procedure that make it safe enough to ensure the rights of the person are protected.
Senator McIntyre: One thing I like about the act is that I find it sets out different roles: the role of the Chief Electoral Officer, the role of the Commissioner of Canada Elections, and the role of the Director of Public Prosecutions.
Under this act, the Chief Electoral Officer would be responsible for the administration of elections, as I understand it. He would deal with errors, emergencies and unusual circumstances.
The Commissioner of Canada Elections would focus on a very important issue: He would be responsible to investigate wrongdoing.
The Director of Public Prosecutions would be responsible for laying charges under the Canada Elections Act. He's been responsible for laying charges for the past seven years.
We have to remember that, under the current Canada Elections Act, the Commissioner of Canada Elections is serving at the pleasure of the Chief Electoral Officer. Also under the current Elections Act, the Chief Electoral Officer can direct the Commissioner of Canada Elections to investigate, just like any Canadian can order an investigation.
Again, the fair elections act would repeal that section of the current act and give the commissioner the power to initiate his own investigations — which I think is important — against all those bound by the Canada Elections Act, including Elections Canada officers, and investigate any matter if he believes there was a violation of the law. This is important, because it would bring any violation of the law to the attention of the Director of Public Prosecutions.
Again, what I like about this act is that it sets out the three different roles: The Chief Electoral Officer is responsible for the administration of the elections; the Commissioner of Canada Elections is responsible for investigating wrongdoing; and, finally, the Director of Public Prosecutions is responsible for laying charges.
To me, the act is clear, and I fully support it.
[Translation]
Senator Rivest: The amendment and the various discussions that we have had on this subject illustrate the fact that legislators must take respect for the Elections Act provisions seriously. Rather than giving the commissioner the power to compel people, this amendment, as Senator Joyal said, takes appropriate precautions, because a judge would authorize the commissioner to act.
It seems to me that this compromise is extremely reasonable. It highlights how important it is for legislators to respect the Elections Act. With this amendment, the commissioner would have to go through a judge. In this way the process would respect individual rights. This is a power to compel. The amendment takes into account the concerns raised by our colleagues, while ensuring that the law is effective. In my opinion, this amendment is an excellent one.
[English]
Senator McInnis: I'm not going to debate it. I simply make the case that it's not just a simple matter of the commissioner going to a judge and getting an order explaining the situation. The fact is that the commissioner will have to hold court, under oath, examining a witness with another lawyer there, presumably on behalf of the witness.
For me, this is just a non-starter in terms of setting up another level.
The Chair: Any further discussion surrounding this amendment?
Seeing none, shall the motion in amendment L4 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: The motion in amendment is defeated.
Shall clause 108 carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Does the committee wish to consider appending observations to the report?
Some Hon. Senators: No.
The Chair: There is no interest in doing that.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator Baker: Mr. Chairman, I just wanted to thank the witnesses, Mr. Chénier and Ms. Kim, for their excellent presentations to the committee. I think some of their testimony was outstanding.
Hon. Senators: Hear, hear.
The Chair: Yes, thank you. We didn't put too much pressure on you today, but we appreciate you being here and being available to answer any queries that came your way.
That completes our business for the day.
(The committee adjourned.)