Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7, Evidence - April 8, 2014
OTTAWA, Tuesday, April 8, 2014
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:03 a.m. to examine the subject-matter of Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we begin our pre-study on Bill-C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts. This bill proposes amendments to numerous aspects of Canada's electoral law, along with related amendments to the Telecommunications Act, the Electoral Boundaries Readjustment Act and the Director of Public Prosecutions Act, among other acts. The bill is currently being studied by the House of Commons Standing Committee on Procedure and House Affairs, which has heard from a number of witnesses on certain elements of the bill. Our task as a committee is to conduct public hearings on the subject matter of the bill, which will allow us to report on some of our findings prior to its introduction in the Senate.
To begin our deliberation, I am pleased to welcome to the committee the Honourable Pierre Poilievre, Minister of State for Democratic Reform. The minister is accompanied by officials from the Privy Council: Isabelle Mondou, Assistant Secretary to the Cabinet, Legal Operations; and Marc Chénier, Senior Privy Council Officer, Counsel, Democratic Reform.
Minister, welcome. We will begin with your opening statement.
[Translation]
Hon. Pierre Poilievre, P.C., M.P., Minister of State (Democratic Reform): My thanks to the committee for inviting me.You are a very distinguished group; you have a vast amount of knowledge, from which I would like to benefit. I look forward to hearing your questions. I have with me today Ms. Mondou and Mr. Chénier from the Privy Council Office. They are experts in the technical matters. From time to time, I will let them speak in order to complement my own personal knowledge.
[English]
Thank you very much, Mr. Chair. I will begin with my remarks.
The fair elections act is reasonable and it is common sense. It will ensure everyday citizens are in charge of democracy by putting special interests on the sidelines and rule-breakers out of business. The bill makes it harder to break the law and it makes it easier to vote lawfully. It closes loopholes to big money, imposes new penalties on political impostors who make rogue calls, and empowers law enforcement with sharper teeth, a longer reach and a freer hand. It protects voters from rogue calls and impersonations with a mandatory public registry for mass calling, prison time for impersonating elections officials and increased penalties for deceiving people out of their votes.
As I said, it gives sharper teeth to the commissioner, which means tougher penalties for existing offences in the act. Longer reach means empowering the commissioner with more than a dozen new offences to combat big money, rogue calls and fraudulent voting. Finally, a freer hand means the commissioner will have full independence, with control of his or her staff and investigations and a fixed term of seven years so that he or she cannot be fired without cause.
The bill will require people to provide ID when they vote. That does not necessarily mean they should provide photo ID or even government-issued ID; neither are necessarily a requirement for people voting in Canadian elections. In fact, Elections Canada provides, through its legal discretion, 39 different forms of authorized ID, everything from utility bills to Indian status cards to student cards to letters of attestation from soup kitchens, student residences, homeless shelters and Aboriginal Native bands. This is a full list that will provide people with all the ID they need to cast their ballot.
It will also make rules clear, predictable and easy to follow. Parties will have the right to seek advance rulings and interpretations from Elections Canada and receive them within 45 days of a request, similar to the service provided by the Canada Revenue Agency. Elections Canada will also be required to keep a registry of interpretations and provide for consultation with and notice to parties before changing them.
Big money from special interests can drown out the voices of everyday citizens. That is why our laws strive to keep it out. The fair elections act will ban the use of loans to evade donation limits. However, the bill will allow parties to better fund democratic outreach with small increases in donation limits while imposing tougher audits and penalties to enforce those same limits.
The fair elections act will make modest adjustments in the spending limit; the donation limit will rise to $1,500 and the spending limit will rise by 5 per cent. The total ban on union and corporate donations will remain.
It will provide better customer service by focusing Elections Canada's advertising on the basics of voting: where, when and what ID to bring.
Also, the fair elections act will require Elections Canada to inform disabled voters of the extra help available to help them cast their ballots. Things like wheelchair ramps and Braille services for disabled voters are available but often not known to the people who need them. The act will require Elections Canada to inform those people of these services.
The act will also provide an extra advanced voting day, which will make voting more accessible. There are two things that drive people to vote: motivation and information. Motivation is what political parties and candidates provide. Information is what the agency is meant to provide. That information is the where, when and how to vote. Special voting opportunities like voting by mail, voting at the Elections Canada office or voting in an advance ballot are many options about which Canadians are not typically aware but should be. It is on this latter priority of providing information that Elections Canada's advertising budget will henceforth focus on with the adoption of the fair elections act.
The reality is that there has been a lot of debate on this bill. The CEO of Elections Canada has indicated his opposition to it. Let me just say that I am at peace with that. The reality is, regardless of amendments and improvements that the bill would potentially have included, the CEO will not ultimately support it. His recommendations really boil down to three broad requirements for him. He wants more power, a bigger budget and less accountability. The amendments that will be under consideration in the final bill that is adopted do not move in that direction.
It is not that I am unaware of his recommendations; I am very much aware of them. It is just that I disagree. We live in a democracy whereby parliamentarians decide on legislation and officers of Parliament advise. The CEO of Elections Canada serves Parliament, not the other way around. That is democracy. When a head of a government body asks for more power, the burden of proof falls to him to demonstrate the need. Let us consider some examples of the new powers the CEO seeks for himself.
First, he believes, and I quote from his recommendation, ``that, upon the request from the Chief Electoral Officer, political parties be required to produce all documents necessary to ensure compliance with the Canada Elections Act.'' Let's examine this: It is difficult to imagine what power the CEO seeks here that he does not already have. Does he need the power to fulfill his role of providing parties with a post-election reimbursement? Well, the truth is, colleagues, he already has that power. Under sections 430 to 435, the existing Canada Elections Act provides that parties must present a detailed ``election expense reporting.'' Section 430(1) reads as follows:
As soon as practicable after a general election, the auditor of a registered party shall report to its chief agent on its return on general election expenses and shall make any examination in accordance with generally accepted auditing standards that will enable the auditor to give an opinion in the report as to whether the return presents fairly the information contained in the financial records on which the return is based.
In other words, the auditor is required by these sections to report if the party's return is incomplete, does not fairly represent the financial records or is missing proper financial documentation.
Under section 435(1)(a) of the existing Canada Elections Act, the CEO is only required to reimburse parties ``if'' he is satisfied that the party has met all the reporting requirements. In other words, if he wants more information he can simply ask for it. If he does not get that information he can refuse to authorize the party's reimbursement. The CEO can simply refuse that money rather than having to possess a new power to requisition documents.
That raises a question, and a fair one. What if Elections Canada has already paid the party its reimbursement when he identifies a problem with the party's election filing? The answer is that filing false information with Elections Canada in one's return is an offence under sections 427 and 431 of the existing act, and the CEO can inform the commissioner, who is the investigator, of such an allegation. He can investigate it and the commissioner, through a judge, can demand access to any documents and information he needs. This power properly rests with the commissioner who already has it and not with the CEO.
Mr. Chair, the next demand from the CEO is that his agency have the power to compel documents that could potentially cause, I believe, serious breaches to the privacy of Canadians. For example, voters often tell political parties who they're going to vote for. They're confiding their secret ballot intentions in that political party. They are not authorizing that their secret ballot vote be transmitted on to a government agency. Therefore, it would be a breach of the voter's privacy if the government agency was able to have unrestricted access to the party database that contains information that the voter has only decided to confide in that party and not in a government agency.
If Ms. Jones, for example, tells party X who she is voting for, she wants party X to have that information. She has not authorized that information to fall into the possession of a government agency. Therefore, she should not have to have her secret ballot voting intentions passed along to that agency.
Next, Elections Canada has suggested that it should have the power to compel testimony before even laying charges. The police do not even have these powers when investigating murders or armed robberies. They are able to secure convictions even with complex evidence and uncooperative witnesses without compelling testimony. If Elections Canada cannot do the same, perhaps that says something about the cases being investigated rather than the powers of the investigator.
Now I'd like to move on to the issue of the independence of the commissioner. The fair elections act makes the Commissioner of Canada Elections independent from the CEO of Elections Canada. The investigative function will be housed in the prosecutor's office but will have explicit legal and practical autonomy over his investigations. The current commissioner, Yves Côté, is invited to stay on in this role, as will his staff, and he will have a fixed seven-year term that he will complete should he so wish. He will bring with him his staff and all of his investigations will be grandfathered. All active investigations will continue uninterrupted by this change.
Now it is no surprise the CEO would like to remain in charge of the commissioner. He is fighting to retain this power, making some incredible claims and inventing some novel legal principles to do it. Let us examine Elections Canada's arguments on this point.
First, the agency says that the commissioner's investigations are already independent. This is demonstrably untrue in law and in practice. You only have to start by going to Elections Canada's website to find that the agency itself, Elections Canada, handles all the media relations for the investigations done by the commissioner. I can assure you that you just need to go to elections.ca and you will see that the contact for all investigations on all the press releases is Elections Canada media relations and a 1-877 number is attached. The CEO regularly speaks on behalf of the commissioner's investigations. Further, the CEO hires the commissioner under section 509 and can fire him at any time, as he serves at pleasure. He has legal authority over the commissioner's budget and his staff. That is it not independence in practice, nor is there independence in law.
I turn your attention to section 510 of the existing Canada Elections Act heading, ``Chief Electoral Officer to direct inquiry.'' It goes on in the same section to say:
. . . the Chief Electoral Officer shall direct the Commissioner to make any inquiry that appears to be called for in the circumstances and the Commissioner shall proceed with the inquiry.
That is correct; the Chief Electoral Officer shall direct the inquiry is how the act is currently written.
Now, in an effort to retain its control over the investigative power, Elections Canada has questioned the independence of the Director of Public Prosecutions. That is an astounding suggestion. This is particularly astounding coming from an agency that has worked with the prosecutor for the last seven years. Since 2006 the prosecutor's office has been responsible for laying all charges under the existing Canada Elections Act. I quote section 511(1):
If the Commissioner believes on reasonable grounds that an offence under this Act has been committed, the Commissioner may refer the matter to the Director of Public Prosecutions who shall decide whether to initiate a prosecution.
During the last seven years, while this section has been in place, I have never heard the CEO question the independence with which the DPP has prosecuted Canada Elections Act offences. In fact, not so long ago, Elections Canada was hailing the DPP as ``an independent'' officer. I quote from Elections Canada's 2012-13 annual report of the agency:
Since the creation of the Public Prosecution Service of Canada in 2006, when the Director of Public Prosecutions Act came into force, the DPP acts as an independent prosecution authority, with a mandate to prosecute cases under federal law and to provide legal advice to investigative agencies.
I repeat, Elections Canada said ``the DPP acts as an independent prosecution authority.'' The agency has reversed itself on this point only now that its CEO is fighting to retain his personal control over the investigative function. He is doing this by having spokespeople cast doubt on the independence of that office.
A further protection of the independence of both the DPP and the commissioner comes from the existing section 2 of the Director of Public Prosecutions Act, which explicitly excludes the Justice Minister from any prosecutions related to the Canada Elections Act.
Let me be more specific. Under section 2 of the existing Director of Public Prosecutions Act, there is an explicit carve-out that says the Justice Minister or Attorney General is not to be involved in any prosecutions related to the Canada Elections Act. That has been the case for the last seven years, and that does not change with the fair elections act.
Next, Elections Canada has argued that there is an ancient principle that separates investigator and prosecutor, that they cannot reside in the same office. That, too, is an astounding claim. Only seven years ago, the investigator and prosecutor were not only in the same office, they were the same person. Prior to 2006, with the Accountability Act, the Commissioner of Canada Elections was responsible for both investigations and prosecutions. Most ironic of all, this happened right inside Elections Canada's own office. It is amazing now that Elections Canada has said this cohabitation is unacceptable, when that same cohabitation occurred in its office seven years ago.
Nor is there any precedent to suggest that investigative powers must reside exclusively with officers of Parliament. Police forces, both national and provincial, are placed within government departments. They carry out politically sensitive investigations all the time. They investigate politicians and lay charges against them, yet they reside in the executive branch of government. The RCMP investigates members of government and Parliament when needed, yet the police force does not report to the Ethics Commissioner; the police force does not report to the Auditor General or to the Public Sector Integrity Commissioner. It is part of the executive branch of government.
I have never heard any credible expert suggest that the RCMP should be made into an office of Parliament. In fact, I would defy you to find a police force in Canada that operates out of the office of an agent of a legislature.
To suggest, therefore, that there is some sacrosanct principle requiring the CEO's office or Elections Canada control this function is a novel concept with little supporting precedent. In fact, there is no other office of Parliament that has the power to investigate and pursue charges.
For example, if the Auditor General or the Ethics Commissioner finds evidence of criminal wrongdoing, they do not take that case to the prosecution; they refer it to the police force. And as I said, the police force is inevitably part of the executive branch of government. The current investigative powers of Elections Canada are the exception and not the rule.
Finally, and most amazingly, Elections Canada has argued it will no longer be able to communicate with the commissioner if he is not in the same office. Surely they have email, phones and fax machines. If they need to meet in person, they can walk a few blocks down the street.
With these arguments, one is left with the perception that the CEO is grasping to find some justification to remain in charge of the investigator. That control should not continue; it is not appropriate. Under the existing law, there are 34 offences that deal with the conduct of Elections Canada officials. How can the commissioner independently investigate the agency's employees when he is one of them? How can the commissioner credibly investigate an agency he works for?
Because of the fair elections act, the commissioner will gain new independence. As a deputy head, he will control his own staffing decisions, and no one else will be able to direct his investigations. The Chief Electoral Officer will continue to have the freedom, just like any other Canadian, to pass along allegations and evidence to the commissioner, who will decide whether to investigate.
There is, furthermore, in the fair elections act an explicit clause that prohibits the Director of Public Prosecutions from directing investigations by the commissioner.
Now let me turn to the issue of voter identification. Elections Canada has argued that people should not be required to present any physical identification when they vote. This is inconsistent with the practices that Canadians carry out in their everyday lives. You need ID to get a marriage licence, to pick up packages or letters you receive in the mail from the post office, and to open a bank account. Some say these are not constitutional rights and, therefore, they are different. Well, since when does a constitutional right exempt people from ID requirements?
Section 6 of the Charter provides mobility rights of citizens: ``Every citizen of Canada has the right to enter, remain in and leave Canada.'' Yet you need a passport to travel outside of Canada. To get a passport, you need ID.
As for entering Canada, here is what the Canada Border Services Agency says on its website: ``Make sure you carry proper identification for yourself and any children travelling with you to assist in confirming your legal right or authorization to enter Canada . . . .''
We have constitutional rights. Sometimes we have to provide ID to have access to them. That is consistent with the Supreme Court's own statement on the question in Opitz vs. Wrzesnewskyj [2012]:
However, unlike the rejection of a valid vote, turning away a voter on election day is not fatal to that person's right to vote. If at first that voter could not comply with a procedural requirement, with some additional effort, he or she can return to the polling station and obtain a ballot.
Elsewhere in the same ruling:
While enfranchisement is one of the cornerstones of the Act, it is not free-standing. Protecting the integrity of the democratic process is also a central purpose of the Act. The same procedures that enable entitled voters to cast their ballots also serve the purpose of preventing those not entitled from casting ballots. These safeguards address the potential for fraud, corruption and illegal practices, and the public's perception of the integrity of the electoral process. . . . Fair and consistent observance of the statutory safeguards serves to enhance the public's faith and confidence in fair elections and in the government itself, both of which are essential to an effective democracy: . . . .
The court has said that enfranchisement is not a free-standing right, exempting people of any obligation to bring ID; rather, the requirements to provide some identification to establish your right to vote is a legitimate one under the Constitution, according to the Supreme Court.
There are safeguards against voter fraud. In the last election, the safeguards on vouching were violated 50,735 times. These were irregularities. Some have argued these are mere clerical or administrative mistakes of no consequence. That is not the case.
The reality is, in Elections Canada's own report, it indicated they were serious enough that they might lead a court to overturn an election result or invalidate a vote.
Here is what the Supreme Court said on the relationship between irregularities and other more serious violations, from paragraph 42 of the Opitz vs. Wrzesnewskyj decision:
The word ``irregularities'' appears as part of the following phrase: ``irregularities, fraud or corrupt or illegal practices''. These are words that speak to serious misconduct. To interpret ``irregularity'' as meaning any administrative error would mean reading it without regard to the related words.
In paragraph 43 it says:
The common thread between the words ``irregularities, fraud or corrupt or illegal practices'' is the seriousness of the conduct and its impact on the integrity of the electoral process. Fraud, corruption and illegal practices are serious. Where they occur, the electoral process will be corroded. In associating the word ``irregularity'' with those words, Parliament must have contemplated mistakes and administrative errors that are serious and capable of undermining the integrity of the electoral process.
That is how the Supreme Court characterizes the term ``irregularities.'' As we engage in the debate over the meaning of words, we should take into consideration what our top court has said in their regard, particularly given this ruling was on the subject of a contested election, the basis of which was largely irregularities around vouching.
Finally, allow me to address the point about transparency. As a minister, I am required to publicly disclose my financial interests so that the public can judge my actions accordingly. Now that's not to say that because I have some holdings that I'm automatically to be suspected of some sort of nefarious interest. To the contrary: I disclose these because I'm fully confident that I'm able to do my job regardless of those interests and I'm prepared to be judged accordingly by the public.
It has come to light that some witnesses who have appeared at the house committee are paid by Elections Canada. There's nothing wrong with that. The agency's website shows the CEO is paying per diems of upwards of $1,500 per day for advice from some of the witnesses. That should not preclude those witnesses from testifying or having opinions. However, it should require that Elections Canada provide information to all of you so you can be aware of it and take it into consideration as you make your wise judgments on the bill.
It should not be the responsibility of a parliamentary committee to dig through disclosure documents, buried somewhere on Elections Canada's website, to find this information. The CEO should proactively provide both house and Senate committee members with information on all of the witnesses who have received financial payments from his agency. That is reasonable, that is fair, that is common sense, just like this bill.
Thank you very much.
The Chair: Thank you, minister. I gather we have you until around 11:30 to respond to questions.
Senator Baker: Thank you to the minister for appearing here today.
The minister quoted a decision of the Supreme Court of Canada, but the minister could also go to Sauvé v. The Attorney General, a decision of the Supreme Court of Canada. Of more recent vintage, a couple of months ago there was the British Columbia Court of Appeal decision in Henry v. The Chief Electoral Officer concerning changes made to the Canada Elections Act in 2007 and 1997, as far as voter identification is concerned at the polling booth.
The position of the Government of Canada at that time was, and I'll quote one sentence of paragraph 352 of the Henry v. Canada case:
The third option that satisfies the identification requirements is vouching. Canada argues that this procedure provides yet greater accessibility and a ``failsafe'' measure because it enables those without acceptable identification to cast a ballot if vouched for by another elector . . .
In other words, the Government of Canada was arguing their ``fail-safe'' for bringing in voter identification documents was vouching. Because of that, the Elections Act portions were upheld by the court. That's Henry v. The Chief Electoral Officer, who was denying such negativity in the changes.
We now have the Chief Electoral Officer appearing before a house committee saying tens of thousands of people will be denied their right to vote.
Section 3 of the Charter says:
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
I don't think that can be overruled by the ``notwithstanding'' clause.
With such overwhelming evidence on a balance of probabilities, that's how a Charter violation is established — not beyond a reasonable doubt. We have the Chief Electoral Officer, the person you have assigned to enforce this bill, saying that tens of thousands of people will lose their right to vote.
The Department of Justice normally approves a bill before it goes to the house as to its constitutionality. Why did the Department of Justice approve its constitutionality in this case, and how do you respond to tens of thousands of people who will not be able to vote?
Mr. Poilievre: Well, I don't accept that. I have with me the list of the 39 options that people can use to identify themselves. It's worth noting that, unlike in many U.S. states, in Canada you are not required to use photo or government-issued ID to identify yourself. There is a diverse list of 39 different forms of ID, of which 13 contain an address. One need only provide 2 of these 39, 1 having an address, or government-issued photo identification in order to identify oneself.
I think it's important to examine what is on this list, because our attention turns to people who we might think have difficulty possessing traditional photo identification.
A Certificate of Indian Status, often known as a status card, is allowed; a medical card; a hospital bracelet; a library card; a Veterans Affairs Canada health card; a Canadian National Institute for the Blind card, which, by the way, in many cases contains an address and I think it should be recognized by Elections Canada in those instances as proof of address. There is also correspondence or a letter of attestation from an Indian band, a student residence, soup kitchen or a homeless shelter. These provide a cornucopia of different opportunities for Canadians to demonstrate who they are and where they live when they cast their ballot.
Senator Baker: The Chief Electoral Officer, however, gave different examples in proving his point: two senior citizens living together and only one of them receives the mail. He highlighted other instances of persons in long-term care facilities in which the administrator today refuses to issue his attestation letters. No law can force him to do it. The Elections Act doesn't force him to do it and he just refuses to do it. There may be students who don't have that present permanent address or can't show it. Any number of instances that he outlined to your House of Commons committee provides ample evidence that, on a balance of probabilities, he's right that tens of thousands of people will not be able to vote.
Mr. Poilievre: I think we're better served to speak in specifics rather than broad strokes. Let's deal with the cases that you have presented.
First of all, let's deal with the seniors. They would be eligible for Old Age Security if they're over 65 and an Old Age Security statement, which comes in the mail regularly, would contain that information. So would the cheque, which is also on the list of 39.
As for students, they are allowed to use their student ID card. They are also allowed to use a letter from the residence they live in, should they reside on campus.
So you've given two examples and I've given you two responses of how they would be served.
Senator Baker: That wouldn't cover all.
Senator Frum: Minister, thank you very much. As you correctly point out, there has been a lot of debate on this issue, with many people objecting. I would like to read to you something written in an editorial in The Globe and Mail:
The Harper government's continued focus on the threat of voter fraud in federal elections is approaching absurdity. Everyone with any expertise who has examined the question in detail has arrived at the same conclusion: There is no threat.
How do you respond to this idea that we have no voter fraud in Canada and that it's absurd for the fair elections act to try to tackle the issue?
Mr. Poilievre: There are a couple of things I'll say. First of all, when you don't check, you don't know. In the last election there were 50,735 irregularities linked to vouching. No one is suggesting that each and every one of those cases involved fraud. However, the rules exist as ``safeguards.'' According to Elections Canada, those are the safeguards against fraud. When those safeguards are violated 50,735 times, there is the opportunity for fraud.
In 45,000 cases in the last election, Elections Canada did not keep records of who the voter and the voucher were. How is it possible to confirm if someone voted more than once or was vouched for more than once if there is no record of who they are?
Now, 45,000 is not a small number; it is out of a total of 120,000. We're talking roughly a third of all instances where vouching was used in the last election.
I think Elections Canada's testimony on this point has further strengthened my resolve to require some form of ID because the CEO has simply dismissed these massive numbers of irregularities as irrelevant and unimportant, which suggests he has no plan to deal with them. Therefore, I think that I am more convinced than I was before.
I should say that the response on the ground from everyday Canadians has been very strong. They believe that ID should be required.
If I could just address something else, The Globe and Mail said something very interesting in an editorial just the other day. I think it was Mr. Konrad Yakabuski. He was talking about U.S. voting requirements, and he made the comparison between those there and here. Beyond the fact that the comparison is absurd, because in American states they are requiring photo ID and we're not, he actually pointed to one state which is removing an advance voting day as an example of what he considered to be U.S. voter suppression.
The fair elections act adds a voting day, so not only are we not pursuing the policies that he criticized in the United States, we are doing precisely the opposite. We're making it easier for people to vote in this country by giving them an extra day and requiring Elections Canada to advertise what those advance voting days are.
Senator Frum: For those people willing to acknowledge that having a third of vouched ballots potentially containing fraud is a serious problem, some would then say, ``Why didn't you try and fix vouching?''
Mr. Poilievre: We think it's reasonable to expect that people present some ID when they cast their ballot. We require people to present some ID when they exercise their constitutionally entrenched right to cross the border. We require that people present ID for all sorts of basic entitlements that exist in society and are furnished by government, and we think that it's a reasonable responsibility for people to select from the 39 different options available under the existing system to cast their ballot.
Senator Jaffer: Thank you, minister, for appearing in front of us and giving us a detailed explanation. Senator Baker asked you a question and I may have missed the answer. Did you say that your department had looked at the constitutionality of this act and it was Charter compliant?
Mr. Poilievre: We have considered the legality of it, and I am convinced the proposal is constitutionally compliant.
Senator Jaffer: I'm very concerned about the identity issue. You have talked about not needing photo ID, and I'm happy you have said that. Did you say that one piece of ID would have to have an address?
Mr. Poilievre: Yes. You have two options under the fair elections act. One is to provide a government-issued photo ID or to choose any 2 of 39, one of which must have an address.
Senator Jaffer: On the issue of Aboriginal people, I understand that the Indian status card does not have an address. Peter Dinsdale, Acting CEO of the Assembly of First Nations, has testified that the changes will make it harder for Aboriginals to vote and is a step backward.
I hear you, minister, and this debate has been going on about identification. Once this bill is passed, what will you put in place so that Aboriginal people who do not have an address on their reserve can vote?
Mr. Poilievre: Under the existing list, there is the Attestation of Residence issued by the responsible authority of a First Nations band or reserve, which would be another option. That would assume that the voter in question did not have any utility bills, any bank card, any vehicle ownership insurance, any correspondence from a university, any statement of government benefits, any government check whatsoever, any pension plan statement of benefits contribution, no residential lease or mortgage, no income or property tax assessment — which in that case wouldn't apply, of course — no insurance policy. If you have none of these things, you can still seek a letter of attestation from your First Nations band or reserve.
Senator Jaffer: Minister, the reality is that some Aboriginal people have no home address. It doesn't exist. I leave this with you, because you obviously have to reflect on it, but how are you going to make it possible for them to vote? They do not have a home address.
According to the Chief Electoral Officer, Marc Mayrand, this bill will affect between 100,000 to 120,000 people, including students who might not have ID with a current address, and I have already said First Nations people living on reserves who do not typically have a residential address.
What are your plans to make sure that each Canadian, when they don't have an ID and don't have an address — consider the homeless; they don't have an address. How are they going to vote?
When I was a young lawyer, on election day I used to go help the homeless vote. They didn't have an address. As you know, in the evening you go to a place. It can be a different place every day. It is not your home address. The next day you go to another place. How is that person going to be able to vote?
Mr. Poilievre: You ask a very good question, and it's one that Senator Pierre Claude Nolin asked Minister Van Loan when he came here in 2007. The reality is that for the purposes of an election a homeless person is considered to reside in the place where they either spend their nights or take their meals, generally speaking. For example, if they return to a soup kitchen daily for their meals or to a shelter nightly, or sporadically, that is considered to be where they reside for the purposes of casting their ballot.
That is why the existing list of 39 contains the possibility that a soup kitchen or a homeless shelter can issue a letter of attestation as to that person's residence at the kitchen or the shelter in question.
I will just remind you of one thing here: This issue of people who do not have a fixed residence is not resolved by vouching, because at some point you have to determine where the person calls home. Just because it's done by spoken word does not mean that it is any easier or more accessible than if it is done by the written word of an authority that provides services to that person.
Senator Jaffer: Minister, every few months I walk on the streets of Vancouver in the middle of the night. I see the same people sleeping in the same corner month after month. That's their home. They don't have an address, but somebody that works with them or sleeps next to them says that that's their address; that's where they live. Under this new law, that person will have no address and will not be able to vote. Is that the kind of democratic reform we want?
Mr. Poilievre: That's not true. The existence or non-existence of that person's address has nothing to do with the provision of vouching. At the end of the day, the act already requires that you establish some sort of residence in order to cast your ballot. That is not changing in the fair elections act.
What is changing is the way you establish it. The fair elections act requires that some ID be presented and it provides 39 different ways that that can occur, including very thoughtful examples that help people who do not have a fixed address.
Senator Batters: Minister, thank you very much for being here today and for your first appearance before the Standing Senate Committee on Legal and Constitutional Affairs.
I come from Saskatchewan, where many Aboriginal people reside. I would like you to explain the Attestation of Residence issued by a responsible authority of a First Nations band or reserve being one of the ways that Aboriginal people would be able to show an address.
Mr. Poilievre: Yes. For those Aboriginals who might not have photo identification or government-issued ID who do not receive any correspondence from the government in the way of assistance programs, they have the other alternative, which is an attestation from a responsible authority on a First Nations band or reserve.
The interesting thing about this is that that responsible authority can provide multiple letters, whereas if that authority existed in the hands of one person could only vouch for one. If, for example, there were multiple people on a reserve who did not have government ID, they would find this provision far more useful as a form of identifying their residence than they would by vouching. I think that it provides a very reasonable method by which people can establish where they live and by which the authority on the reserve can do so.
Now these do not have to be complicated missives. It doesn't have to be a novel. Simply providing a statement of who the person is and where they live will suffice.
Senator Batters: Thank you.
In my view you should have to have at least as much ID to vote as you do to take out a library book or rent a movie, should movie rental stores still exist. As well, there are very few provinces in Canada that allow vouching for provincial elections, and I'm wondering if you could comment on that.
Mr. Poilievre: Look, every province has its own form of requirement to determine someone's residence and establish their identity. You're quite right; there are many provinces that do not permit vouching. To my knowledge, none of those provinces have been found to have violated the Constitution by the mere fact that they don't have vouching.
Senator Batters: Dealing with the Director of Public Prosecutions, in your opening statement you referred to it as astounding that some have now questioned the independence of that particular officer, and I certainly agree with you. In my past experience as the chief of staff to Saskatchewan's Minister of Justice, this was a very important position dealing with the Ministry of Justice. Although that position for Saskatchewan technically reports to the Minister of Justice, independence is a vital and well respected tenet of that office from the minister's office. One of the most important initial briefings you receive in that minister's office is the independence of the Director of Public Prosecutions. Could you expand on what you said about the independence of that position?
Mr. Poilievre: To start with, anybody who takes the position that the Director of Public Prosecutions is not independent has a big problem with the existing Canada Elections Act because under the act today there is no offence that can be prosecuted without going through the Director of Public Prosecutions. He is already in charge of that. In the seven years he has held that role, I have never heard a single suggestion that he has lacked independence in the way he has done his job. I'm not aware of any statement by Elections Canada suggesting that he has lacked independence or that there has been political interference in the work that he has done. In fact, I've never even seen an allegation, proven or otherwise, to that effect.
It is only since we have suggested that the commissioner be situated in the office of the DPP that suddenly Elections Canada and its spokespeople have questioned the independence of that officer. That is really an extraordinary thing coming from an agency that in its 2012-13 annual report called him an independent prosecutor. The word ``independent'' was the adjective that Elections Canada chose in its own annual report to describe this person. Now the agency has performed a 180-degree reversal, which really raises a lot of questions about Elections Canada and the degree to which it is prepared to change its positions now in order to defend its control over this function.
Senator Joyal: Welcome, Mr. Minister. You certainly know that the right to vote is a very important right. In fact, it is the right at the basis of citizenship in a country. When you are a citizen of a country, you have the right to vote. It is an essential condition, and the laws in many provinces and many democratic countries have established some criteria to have that right to vote. Not only do you have to be a citizen, you have to be 18 years old, you have to be resident of a province for a certain period of time, and the same for Canada and so on.
The courts generally accept the principle that there are reasonable limits to exercising the right to vote, that is, to participate in the democratic process of choosing the government and expressing political views.
Perhaps you read the decision of Justice Mongeon in Quebec last Thursday in the context of the Quebec election, whereby a student at McGill wanted to vote and created a lot of fuss during the campaign and Justice Mongeon re- established a principle. The decision was very recent, I believe just 48 hours ago.
The objective of establishing identity is not in dispute. As you state, to establish the identity through a series of various documents, and you list 39, is well accepted all over the world in democratic countries. The problem is that you are removing one way to prove the identity, which is the vouching. That's the problem. The dispute is not about establishing the identity. The problem is that you are removing from the act, at section 143, the opportunity for somebody to be vouched.
I and many members of this committee are concerned with the constitutionality of a bill when it arrives here. It is the first test that we apply to a bill. I have to say that in the last eight years we have received many bills where the question was asked of the minister testifying, the Minister of Justice or other minister, ``Is it Charter proof?'' ``Oh yes, the Minister of Justice has assured us that it's Charter proof.'' We know what happened at the Supreme Court with the most recent decision, that being the Nadon decision.
We had the minister here testifying that they had checked and, even more than that, we had two former justices of the Supreme Court testifying, as well as Peter Hogg, the biggest authority. We maintained our doubts about the constitutionality and the court confirmed the non-constitutionality of the bill.
In this case, if we apply the Oakes test of the Supreme Court to the fact that you removed the vouching, in my opinion, Mr. Minister, it is unconstitutional. The Oakes test states three principles. The first principle is the objective of the legislation and the second is whether there is proportionality between the means used to serve the objective. In this case, for you to serve the objective, claiming that there are irregularities — and there might even be fraud; there is fraud even with the identity. By the way, fraud will always exist. We try to limit the fraud but fraud will exist.
I think you fail the test because instead of strengthening the vouching, you decided to wipe it out. You could decide to strengthen the vouching by asking for two persons to vouch, or you can ask for more information about the person vouching, or to have the person swear an oath, or require that the person have two pieces of identity or not to be able to vouch for more than one person.
There is a way to frame the vouching system in a way to limit the irregularities or the fraud, but what you have decided is, ``Okay, we will delete it.'' That's why I think there is a problem in your approach to vouching.
You quoted a case and I will quote one. The leading decision on the right to vote is the Supreme Court in Figueroa, a 2003 case in which the court has very clearly said that in relation to section 3 of the Charter, we have to adopt a ``broad and purposive approach.''
The purpose of s. 3 is effective representation. Section 3 should be understood with reference to the right of each citizen to play a meaningful role in the electoral process, rather than the election of a particular form of government.
So it's quite clear that it is a right to participate.
The Chair: Senator, I encourage you to ask a question.
Senator Joyal: That is the problem I have with your reasoning. You know this and I admire your firm decision, but we all know that this section will go before the court. I have read from too many lawyers and too many constitutional experts, even with respect to what the former Auditor General of Canada said in relation to this, that this provision of the bill will be challenged in court. I am not at all certain that it will succeed in the court because it is not proportionate with the objective that you aim to serve by removing it. That is my reasoning.
Do you agree or not? That is the question.
Mr. Poilievre: I don't agree.
The Chair: So we can move on?
Senator Joyal: I will see you in court, then.
Mr. Poilievre: Okay.
You've mentioned safeguards, senator. The problem with the last election is that not only were these safeguards violated 50,735 times, since then, Elections Canada has come out and said they are really not important. You can add as many safeguards as you want, but if they are not honoured or administered, then they don't have any value whatsoever.
As for the issue of the constitutional right to vote, I would encourage you to consider the unseen violation of someone's constitutional voting rights that results from an ineligible vote. If you legitimately and honestly vote for Candidate A and someone else fraudulently votes for Candidate B, your vote has been mathematically cancelled out; you have lost your constitutional voting weight because your ballot does not mean anything. It is literally cancelled out by an ineligible one.
So the objective of ensuring the eligibility of the voter is just as important as ensuring that everyone has the right to cast a ballot. We believe that with 39 different forms of ID, that can be achieved.
Senator Plett: I find it strange that — and I have only been on this committee for a few months — with every piece of legislation we have had brought in by our government, the first argument by the opposition and media is that it's not constitutional. So let's battle it on that ground first and foremost. I would say in most cases, if not all of them, the government has won the day there as well.
Another comment I want to make before I ask my question is that I think making it more difficult is not taking away the democratic right of somebody; we are tightening up some rules. I have been involved in election campaigning for somewhere between 40 and 45 years, and I have seen progressively that voter fraud, I believe — and certainly in the last Manitoba election we had a number of cases where we proved there was voter fraud — is getting more and more rampant.
So I applaud you, minister, first for bringing in what I think is a very good bill that will certainly not disenfranchise people but indeed help those people that are out there legitimately and honestly voting for Candidate A or Candidate B.
My question, minister, is very simple: Do you have to show that you are a Canadian citizen in order to vote?
Mr. Poilievre: It is a requirement to be a Canadian citizen to cast a ballot. We do not have a national citizenship ID card that can prove that. Therefore, the method of demonstrating it is, one, you can be on the voter's list and, two, if you are not, you can take an oath that includes citizenship as part of it. There is a proposed fine in the fair elections act of I think $50,000 for anyone who lies under oath as to their citizenship. This is not a perfect safeguard, but it is the best one we can find, given the system of citizenship identification that exists or, to put it better, doesn't exist in this country.
Senator Plett: Thank you.
Mr. Poilievre: I wish to comment on one other aspect of the senator's comments.
We are part of the legislative branch of government here. We are not the judicial branch of government. We draft legislation that we think is good public policy. It is not the role of the legislature to rule for the judiciary. I appreciate their opinions as to constitutionality. I firmly believe this bill is constitutional, and I am prepared to defend that anywhere.
When the senator across, Senator Joyal, he says that he would like to potentially challenge that, that is his right, but the judiciary makes those decisions, not the legislature.
Senator McIntyre: Thank you, minister, for your presentation. I want to make sure that I understand the reasoning behind this legislation.
Bill C-23 proposed amendments to the Canada Elections Act and various statutes. As I understand, the amendments are in response to concerns raised by the Chief Electoral Officer and supported by the House of Commons committee.
The amendments are also in response to reports prepared by Elections Canada. On top of that, some of the amendments in the bill also form part of Bill C-21 and Bill C-40, both of which, as you know, died on the Order Paper. Finally, the number of amendments are mainly government initiatives.
Am I correct in this analysis? Is this the reasoning behind Bill C-23, to address the concerns by both the Chief Electoral Officer and Elections Canada?
Mr. Poilievre: No, the bill is not written just to address the concerns of Elections Canada.
Senator McIntyre: But it also ties into other bills that died on the Order Paper, Bill C-21 and Bill C-40, as I understand it.
Mr. Poilievre: For example, the political loans accountability act responded to a loophole that emerged in the aftermath of the donations limits that both Liberal and Conservative governments instituted. We discovered that a series of leadership candidates were using unpaid loans as a means to get around donations limits, and Elections Canada did not hold any investigation as to whether or not that was a deliberate attempt to avoid the donation limits, which would be an offence under the act. So we are, for example, closing that massive loophole. That is just one of many examples of the catalyst for the fair elections act.
While we do accept about 38 recommendations from the Chief Electoral Officer, the bill was not designed to necessarily respond exclusively to his concerns. While we have taken those into account, this is a democracy and every Canadian has a say.
[Translation]
Senator Dagenais: First, I would like to thank you for being here this morning, Mr. Minister. We are talking about identification. When you go to an airport, you have to identify yourself. When you come here to Parliament, you have to identify yourself. I am a little surprised that, when you are choosing a government, you do not have to identify yourself. People have to identify themselves.
I ran for election in 2011. I am convinced that Bill C-23 is a good bill and a distinct improvement in the electoral process.
In your opinion, do you feel that Canadians will be more inclined to go and vote knowing that their vote will be protected against electoral fraud and that Elections Canada will be administering the act in a more consistent manner?
Mr. Poilievre: Absolutely. I believe that Canadians will have more trust in their democracy and in the integrity of the vote because of the changes we are proposing in the fair elections act.
I also believe that, with Elections Canada advertising about how, when and where to vote, it will help people come with all the information they need.
For example, 39 forms of identification are acceptable. Many people are unaware that there are so many. Even the leader of the Green Party told me that you need a piece of photo ID. The leader of a party, someone who ran as the leader of a major political organization in two elections, thought that she was required to present a piece of photo ID.
With that in mind, Elections Canada has to do a better job of informing Canadians of the other identification options at their disposal, because, if Canadians know that they have 39 options, they will be able to identify themselves more easily when they are voting.
Senator Boisvenu: Mr. Minister, thank you for being here and for your clear answers. You are a very good teacher. If there are people who have doubts about the clarity here, perhaps their concerns lie elsewhere than with very clear elections legislation. We have just come out of a provincial election in Quebec. A lot of people were very satisfied with the results. I examined the role of Quebec's Chief Electoral Officer during that election campaign; it was very focused on providing voters with information: where to vote, the importance of voting, the ways to vote, the criteria, and so on. I have been involved in a number of federal elections and I have rarely seen the Chief Electoral Officer play that role in federal elections beyond explaining what his powers are.
The bill is going to change the Chief Electoral Officer's responsibilities in terms of the relationship with voters. My question is very important for Canadian voters. This bill is first and foremost for them. In real terms, how will this bill make it easier for Canadians to exercise their right to vote?
Mr. Poilievre: First, there will be an additional day on which people can vote, allowing people who are busy on polling day to vote in advance. That gives Canadians an excellent tool.
Second, Elections Canada will be required to inform Canadians about all the practical questions: where, when and how to vote. That seems simple. It is quite simple if you vote on polling day at your designated location. But for the advance polls, it is different. In the last election, a lot of Canadians, half of young Canadians, did not know that they could vote in advance. In the last election, 73 per cent of young Aboriginal Canadians did not know that they could vote in advance.
If those young Canadians are working or are busy with their studies on polling day, they should know that they have other options. Now we are going to require Elections Canada to tell them that. I feel sure that making elections more user-friendly will increase their participation rate.
Senator Boisvenu: If someone arrives at a polling station and he is not on the list, but he has identification, will it be possible for him to vote?
Mr. Poilievre: He can register right on polling day as soon as he arrives. If he does so, he will have to take an oath to demonstrate his credibility.
Marc Chénier, Senior Privy Council Officer, Counsel, Democratic Reform: He has to complete a registration form, which includes a declaration of his eligibility to vote.
[English]
Senator McInnis: Thank you for coming this morning. I have a quick comment and then a question.
I'm not as old as Senator Plett so I've not been involved in as many elections, but I have since the age of 16. I can tell you that vouching is a problem. It's not just vouching. I've witnessed it personally on the streets of Halifax and Dartmouth, and it is a problem.
Many of these people, first of all, don't even know who the candidates are and haven't been involved. That doesn't absolve them from the right to vote; I realize that. I've seen people take them in and almost mark their ballot. That's how serious this is, and it's thousands and thousands.
I want to say that I was taken aback. Sheila Fraser has a lot of credibility in this country for some of the things that she has done. I would like your comment on an article and comments attributed to her and then I will follow up with another question:
. . . when you see the difficulties, just the operational difficulties that are going to be created in all this, I think it's going to be very difficult to have a fair, a truly fair, election.
I thought that was some kind of comment. In fact, in part of this article she talks about and criticizes hiving off the commissioner and putting him or her in with the independent director of prosecutions.
Back in the 1980s, we had a royal commission in Nova Scotia into the wrongful conviction of Donald Marshall Jr. Prior to that, the Attorney General's department, the prosecutor and administration were all in one department. One of the key recommendations was that we have independent public prosecutors and a director of public prosecutions because it brought about the separation. You've alluded to this and scholars for years have called for this separation.
What amazed and surprised me was that a person — and we will find out, as I understand she is coming before the committee — would make this comment. She is co-chair of an advisory board. Was she speaking for the board? I have the list of those esteemed individuals on that board. Is she speaking for herself? Do you know that? Have you inquired at all, not that it was your job to inquire? Is she speaking for Michael Wilson, Preston Manning and all these individuals, or is she on her own?
I think it is a statement that is somewhat, if I may say so, reckless, in light of what we have as precedents now across this country as to how administration is separated from the prosecutorial side.
Mr. Poilievre: As I have read the transcripts of the recent debate, senator, I think one of your senators is on this body, Hugh Segal. He indicated the comments were not a reflection of his point of view.
I'm not really familiar with this body. I'm not sure what it does or what role it has, so I can't really comment further on it. But I do find Elections Canada's comments on the independence of the Director of Public Prosecutions very troubling and plainly contradictory.
I just quoted the 2012-13 Elections Canada report where they referred to the prosecutor as independent. For the agency now to suddenly claim that there would be a lack of independence is a tremendous and spectacular contradiction of its past written statements.
As for the issue of logistical problems, I think you quoted someone saying that would be an issue. I can't imagine what those problems are. As I understand, Elections Canada has email, phones and people who can walk down the street to another office. We all work together, yet we don't all reside in the same office. I don't know what logistics or additional problems could possibly occur.
I should also note that in the fair elections act, proposed section 510(3) says:
The Commissioner is to conduct the investigation independently of the Director of Public Prosecutions.
Not only is the DPP independent from the political government, but the commissioner is independent from the DPP; that is two layers of independence rather than just one.
Senator Mitchell: Thank you, minister. It's clear that you're an experienced debater.
I see a logical and uncomfortable problem for you with the manner in which you are assessing the potential for voucher fraud. If you look at the logistics and the logic of voucher fraud, you have to have a voucher person who is a liar and a ``vouchee,'' the person being vouched for, who is a liar. In order for vouching fraud to be of some magnitude, you have to have a lot of Canadian liars.
Is it not the case that for assessing vouching fraud to be significant enough to risk disenfranchising literally thousands of Canadians, your default justification has to be a very cynical conclusion about the integrity of hundreds if not thousands of Canadians? They have to lie to do this. I just don't believe that Canadians are inclined to do that in the magnitude that your risk of disenfranchised suggests.
Mr. Poilievre: Do you believe that people should have to continue to present ID when they cross the border?
Senator Mitchell: That is quite a different situation.
Mr. Poilievre: Do you?
Senator Mitchell: I believe that vouching is a perfectly legitimate way to establish that somebody —
Mr. Poilievre: Across the border?
Senator Mitchell: I believe that vouching is a perfectly legitimate way to establish that somebody is a legitimate voter.
Do you believe that not having to establish that you are a Canadian citizen is sufficient to justify that you are able to vote? That is what you are saying. Are you saying that they should have a passport to allow them to vote — to prove that they are Canadian?
Mr. Poilievre: Are you extending the vouching provision to border crossings?
Senator Mitchell: No. Are you extending the passport provision to voting? It cuts both ways.
Mr. Poilievre: He has answered my question now. He says that no, he doesn't believe the vouching provision should apply at the —
Senator Mitchell: What I'm saying is —
Mr. Poilievre: If I could finish, Mr. Chair.
Senator Mitchell: Many people who cross borders are not Canadians. What I'm saying is everybody who votes are, in your suggestion, liars enough to be jeopardizing the vouching system.
I have another question.
The Chair: Let's have the minister respond, instead of this back and forth.
Senator Mitchell: He asked me a question.
The Chair: You have the opportunity for a response, minister.
Mr. Poilievre: Well, the senator has said that he doesn't believe people should vouch to cross the border and that they should be able to provide identification. He must, therefore, be accusing all Canadians of being liars by his own previous logic.
Senator Mitchell: I absolutely haven't said that. I'm just saying that in order for him to suggest that you need vouchers and ``vouchees,'' you have to have a lot of liars. I have more faith in Canadians when they approach the voting booth.
My second question is related to this interesting ambivalence of the Conservatives toward voter fraud. On the one hand, they are concerned about it, judging by what the minister is saying and judging by his bill, while on the other hand, every time voter fraud has arisen in some kind of judicial or investigatory process at a formal level — let's say Etobicoke Centre or the robo-calls investigation — the Conservative Party argues vehemently that it does not exist.
My question is if you were really concerned about voter fraud, hacking into the Conservative's database with millions and millions of names would seem to me to be a huge potential for voter fraud. Yet, the Conservative Party and the Conservative government has made no effort to get to the root of who exactly hacked into its CIMS database to see who perpetrated that. What is in their process of attacking and undermining and getting after voter fraud that would indicate how their database was hacked and could it happen in another election and create tremendous potential for voter fraud?
Mr. Poilievre: Mr. Chair, I think he is referring to automated calls. The fair elections act contains a requirement that all automated calls be registered with the CRTC, the national telecommunications regulator. It creates a new offence for impersonations and increases the penalty for the existing offence linked to deceiving people about voting locations. The fair elections act does address the issue that the senator raises. If he is so concerned about that issue, I would encourage him to support the bill.
The Chair: We have limited time remaining and I have four senators at the moment on a second round. I would ask you to respect the opportunities that each senator on the list would like to have with respect to questions. Minister, in terms of your responses, I would encourage you so we can get in as many as possible. We will begin with Senator Baker.
Senator Baker: Just a note. At the end, the minister referenced the provision in the bill regarding reporting to the CRTC. Unfortunately, the bill says that these records, absent the necessary information of who was called, will be kept for one year. You will recall, Mr. Chair, that we passed the last change to the Canada Elections Act that gave a 10-year period for prosecution of summary conviction offences under the act.
My question is about the robo-calls or any other offence or possible offence or suspected offence for which the commissioner will be investigating. The minister is right: The commissioner is separate from the Office of the Public Prosecution Service of Canada.
The Chief Electoral Officer of Canada has asked the government to put in a provision to assist in the investigation of the robo-call matter and other matters that involve possible offences under the act. The provision is to enable the commissioner to have the same authority that a commissioner has under the Public Inquiries Act. It is the same authority that most commissioners have, most chief electoral officers have in the provinces.
The Auditor General is investigating the Senate — soon to investigate the House of Commons, I imagine. The Auditor General has the power of a commissioner under the Public Inquiries Act, that is, to go to a judge in a particular case where he or she can't get cooperation and get a court order. That is done in most investigative situations by authorities involving auditing and everything else. He is not permitted to do that here.
I agree with you that police officers don't have that authority, but that is a different context. When you have somebody in court, they have to answer. This is not the United States where you can plead the Fifth Amendment. You have to answer. But in this particular case, it would facilitate criminal investigations. Why not give the commissioner in Canada the same power under the Public Inquiries Act to investigate that most provincial commissioners and the Auditor General of Canada have?
Mr. Poilievre: This is a power that police officers do not even have. Even when they are conducting investigations with complex evidence, fact situations and uncooperative witnesses, they do not have the power that Elections Canada is seeking for itself.
To clarify, the commissioner has the ability to go to a judge and seek a court order to produce documents and physical evidence. That exists right now. That is what police officers have. That is quite distinct from the power to compel testimony, which is not presently available to either police officers who investigate the most serious crimes imaginable or to Elections Canada.
Senator Baker: I understand.
Senator Frum: I have to begin by commenting that I am surprised Canadian banks bother to lock their doors at night, given that I've learned from Senator Mitchell that we don't have any dishonest Canadians. What a waste of effort on their part.
On a different topic, the Chief Electoral Officer has claimed, and Sheila Fraser has backed him up, that this bill will muzzle him, section 18. He has gone so far as to say that after this bill is passed, he won't even be able to give interviews on CBC Radio. Can you comment on whether he is muzzled by this bill?
Mr. Poilievre: No, he is not. The section in question is section 18. The bill focuses the CEO's advertising power on the basics of voting: Where, when and what ID to bring and what special tools are available to help people with disabilities cast their ballot.
The bill, as it will be passed, will not confine speech. It will relate to his advertising and promotional powers under the act.
Not only is the CEO allowed to speak, he is required to speak. Under section 533, 535 of the Canada Elections Act, he is required to provide written reports and testify before Parliament. Those obligations will remain with the passage of the fair elections act.
Senator Jaffer: I want to ask about vouching. During your second reading speech in the house, you said:
The reality is that vouching is not safe; it is not secure. After the fair elections act is passed, it will not be allowed.
My question to you, minister, is what research or study did you rely on to come to that conclusion?
Mr. Poilievre: There's obviously the case that we heard before the Supreme Court, Opitz v. Wrzesnewskyj, where the court commented very extensively on these issues. There is also the enormous number of irregularities that occurred in the last election, 50,735, which is an extraordinarily high number.
Senator Jaffer: Were they all vouching?
Mr. Poilievre: To be fair, there were 165,000 irregularities in the last election, a really astounding failure on Election Canada's part as the administrator, and 50,735 of those were linked to vouching. Of those, in 45,000 cases, we don't know the names of the voucher and the voter. That is a very large number of irregularities.
The fact that the author of the report who found those irregularities is himself a supporter of vouching should raise even greater concerns among all of us because it shows this was not a report produced in order to achieve a policy outcome but was written to show the facts, and the facts are that there were serious problems with vouching in the last election.
Senator Batters: Minister, we heard you say there were 165,000 serious errors and 50,000 irregularities in that 2011 election administered by Elections Canada. Since that is such a staggering amount, can you tell us what in particular those errors pertained to?
Mr. Poilievre: I can get the summary of the report. I might have it with me. There were vast errors in the registration process. As I said, there were 50,000 related specifically to vouching. I can provide the committee with the summary of the report in which those serious errors were found. I don't have it on my person right now, but it is public information.
Senator Batters: Thank you.
Senator Joyal: Minister, there is an uncertainty about the capacity of either the house or the Senate to improve on the bill. Is it your position that this is the Bible and we should not even consider changing anything, even in the context of the objective of the government to assure fairness, or is this a fair and open parliamentary process whereby we can question how we could best come up with proposals that would support the objective of fairness?
Mr. Poilievre: The house committee presents its proposed amendments on the 25th, and I don't want to comment on those amendments until I have seen them.
The Chair: Thank you, minister. We appreciate your appearance here today, along with the officials, to help us in our consideration of the legislation.
Senators, we are back here at 1:30, and our first witness is the Chief Electoral Officer.
(The committee adjourned.)