THE STANDING SENATE COMMITTEE ON Legal and Constitutional Affairs
EVIDENCE
OTTAWA, Wednesday, May 16, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-31, to amend the Canada Elections Act and the Public Service Employment Act, met this day at 4 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: The Standing Senate Committee on Legal and Constitutional Affairs is here today to begin its study on Bill C-31, to amend the Canada Elections Act and the Public Service Employment Act. Bill C-31 proposes a wide-ranging series of measures directed at enhancing the accuracy of voting information and preventing or minimizing abuses in the voting process. It seeks to improve the way that personal information about electors is gathered and incorporated into the National Register of Electors and ultimately made available to election officials as well as candidates and their representatives in the course of elections and between elections. It will also introduce at the federal level a requirement that voters provide identification at polling stations before they can exercise the right to vote.
The changes proposed in the bill are a response by the government to a series of recommendations proposed by the House of Commons Standing Committee on Procedure and House Affairs in its thirteenth report in June 2006, entitled Improving the Integrity of the Electoral Process: Recommendations for Legislative Change. The committee developed its recommendations in conjunction with its review of the recommendations for legislative reform contained in the Chief Electoral Officer's report on the thirty-eighth general election tabled in the House of Commons on September 29, 2005.
That committee's review of the Chief Electoral Officer's recommendation, and its consideration of the areas it identified as requiring reform, was guided by three overarching and interrelated themes: one, the integrity and accuracy of the National Register of Electors; two, voter identification at the polls, and; three, voter fraud.
To speak to us today, I am very happy to introduce you to the new Chief Electoral Officer of Canada, Mr. Marc Mayrand. With a background as a university law professor and senior public servant, Marc Mayrand has extensive experience in strategic management and organizational change. He was Superintendent of Bankruptcy for 10 years before being appointed Chief Electoral Officer of Canada in 2007.
Accompanying Mr. Mayrand from Elections Canada, we have before us Diane Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel, and Rennie Molnar, Senior Director, Operations, Register and Geography.
I would also like to welcome Mr. Marcel Blanchet, Chief Electoral Officer and President of the Commission de la représentation électorale. His career as a lawyer and administrator in Quebec's public service began in 1974 where he served in the provincial ministries of justice, public service and education. Mr. Blanchet took office as Chief Electoral Officer of Quebec and Chairman of the Commission de la représentation électorale in May of 2000.
I would now like to welcome you to the committee. You now have the floor. The procedure of this committee is that after you make your presentations, honourable senators will pose questions to you.
[Translation]
Marc Mayrand, Chief Electoral Officer, Elections Canada: Mr. Chair, thank you, it is both an honour and a pleasure for me to appear before your committee for the first time as Chief Electoral Officer.
Since taking on the position on February 26, I have discovered that I have many challenges ahead of me, especially considering the heavy legislative agenda facing Parliament. Fortunately, I have equipped myself with a very high calibre team at Elections Canada, a committed and competent team that will continue to ensure the success of Elections Canada. My first priority is, of course, to ensure that my office is ready for an election. That remains Elections Canada’s first priority.
But today, I am here to discuss Bill C-31 — you are already familiar with the outline of the bill. Given the time available and the witnesses you have, I will spare you the summary. You will have noticed that the bill proposes many changes that will improve the accuracy of the National Register of Electors and to make it easier for parties and candidates alike to use the list of electors that are distributed during an election period.
I would like to draw your attention to three points in particular, which address the challenges of seamlessly implementing the bill before you. I will touch on the issue of tighter rules aimed at proving electors’ identity and residence when they exercise their right to vote, and a new process for informing candidates which electors have already voted and, last, the provisions for coming into force as set out in the bill. The bill introduces some major changes aimed at identifying electors. It is in this context that before receiving a ballot, each elector will provide, by choice, one piece of identification issued by a Canadian government, whether federal, provincial or local, or an agency of that government that contains a photograph of the elector and his or her name and address.
I must point out that our research to date indicates that there are not many pieces of identification issued by government authorities that meet the three criteria I mentioned. Of course, the main identification card that would meet these three criteria is the driver’s licence. We note that approximately 85 per cent of electors in Canada have a driver’s licence, so that leaves a certain segment of electors who do not have one. Among those who do have a driver’s licence, we must note on occasion, and quite frequently, that the address indicated on the driver’s licence may be a commercial or non-residential one. So on occasion, even the driver’s licence will not be sufficient to meet all of the requirements of the act.
Fortunately, electors will have a choice. Alternatively, they could present two pieces of identification authorized by the Chief Electoral Officer, each of which establishes the elector’s name and at least one of which establishes the elector’s address.
I sent you a copy of a list of pieces of identification a few days ago; it is still in the draft stage. It is in circulation for consultation purposes. As Minister Van Loan suggested when he appeared before you last week, a provision could be added whereby proof of residence could be confirmed by administrators of student residences, homeless shelters and seniors’ homes.
I have received other comments as well. I plan to discuss this matter the next time I meet with the Advisory Committee of Political Parties before finalizing the consultation process.
In this regard, your comments would also be welcomed. Please to not hesitate to pass them on to me if you deem it appropriate.
Moreover, electors who cannot present these two authorized pieces of identification may still vote and prove their identity by taking the prescribed oath. They must be accompanied by an elector whose name appears on the list of electors for the same polling division and who provides the pieces of identification mentioned earlier and vouches for the elector on oath. So there will be two sworn statements in these cases.
Please note that an elector who is being vouched for may not vouch for another elector. In addition, it is still prohibited for an elector to vouch for more than one elector.
So as I mentioned, electors have three ways in which they can identify themselves. In the end, the deputy returning officer must be satisfied that an elector’s identity and residence have been proven in accordance with one of these three methods before the elector is allowed to vote.
These are major changes compared with current legislation, under which electors who are duly registered have to present proof of identity or residence to vote only when their identity is questioned by the deputy returning officer, poll clerk or candidate’s representative.
The amendments related to proof of identity would transform our electoral system from a system where the declaration of electors already registered on the electoral list is sufficient proof of their identity and residence into a system in which electors would have to prove both their identity and their residence to be able to exercise their right to vote.
Generally speaking, the proof of identity and residence rules to be able to vote that would apply if the bill were passed would be the most restrictive in Canada.
By comparison, in Quebec, electors who provide one of the prescribed pieces of identification do not have to show proof of residence to vote. Similarly, under the bill currently under consideration in the Ontario legislature, voters would only have to prove their identity either by providing a card or completing a statutory declaration.
In this context, my office has begun reviewing the impact that these changes would have on electors, political parties, candidates, and election workers.
Allow me to highlight some of the initiatives that we plan to take to ensure the seamless implementation of this bill.
Firstly, it goes without saying that the amendments to Bill C-31 require a comprehensive review of the directives, manuals and training modules used to guide some 190,000 election workers who work during the election period.
Therefore, we will first have to study the impact of these new requirements on voting procedures, develop new processes and implement the measures necessary to minimize the risk of congestion and delays at polling stations.
[English]
If the new measures set out in Bill C-31 substantially increase the amount of time it takes each elector to vote, we will ask returning officers to divide the list of electors so as to reduce the number of electors in each polling station. This would necessitate additional polling stations and staff. We will also train returning officers and their assistants so that they can implement the new requirements of Bill C-31. In addition, electors will need to be well-informed about these new requirements so that they arrive at polling stations with the necessary pieces of identification. In fact, a separate advertising campaign will be developed and run during the election to address this matter. We are also planning to adjust the voter information card, the reminder card; so that electors are made well aware of the requirements of identity and residence before they can vote.
We will also want to run special or targeted programs to facilitate voting access as much as possible to certain groups of voters for whom the new provision could be more challenging. I am thinking here of homeless persons, students living in residence, Aboriginal people and seniors who may have difficulty showing proof of residence.
Finally, we will also be conducting consultations as required on applying these new rules, including with political parties. This will give us a better idea of the potential impact on their operating systems.
Although I would prefer to apply these new provisions as quickly as possible, I must acknowledge that the time frames would be very tight if an election were called not long after the bill received Royal Assent. In fact, the legislation also recognizes this issue and has provided for it in section 554 of the Canada Elections Act. It stipulates that no new provisions apply in an election for which the writ is issued within six months of the passing of the provisions unless, before the issue of the writ, the Chief Electoral Officer has published a notice that the necessary preparations for bringing the provisions into operation have been made and that the amendment may therefore come into force for that election. The effect of section 554 is that some provisions of the bill that are to come into force two months after Royal Assent could be in force at the time of the election but would have no application to that election.
The bill also provides that amendments to the act that necessitate changes to computer systems, including the addition to the list of electors of a unique identifier number, the date of birth and in some cases a sequence number are to come into effect eight months after Royal Assent. I must point out that with our current system technology systems, 10 months is usually needed to complete those types of changes and to run the necessary tests to ensure that they are working properly. If an election were held before then, it would be difficult and, in fact, it would be risky to put those provisions into effect in time for that election.
Before I conclude, I would like to talk briefly about a new responsibility that is assigned to the poll clerk of indicating on a form the identity of electors who have already voted. The poll clerk would then provide that information from time to time during voting days on request to candidates' representatives, and I refer here to page 13 and clause 28 and the proposed changes to paragraph 162(i.1) of the act.
As I understand this provision, the purpose of this amendment, which is largely inspired by Quebec law and practice, is to provide candidates and their representatives with a way to more easily identify those of their supporters who have not yet voted on polling day. The provision as drafted would require this information to be provided several times a day, not only on polling day but also on advance voting days.
In addition, the names of electors who are not registered on the day they vote would also have to be provided manually in long form at that point, both on polling day and during advance voting day. To me, this latter information would appear to be of little practical interest for candidates trying to identify their supporters who have not yet voted.
Finally, there would seem to be some discrepancy between the English and French versions of the bill with respect to how often these forms can be requested by candidates.
For all these reasons, I would prefer this provision to be clearer as to its application and to better reflect Quebec practice. Therefore, I would have wished that during advance voting the identity of electors who have voted not be made available until the end of the day. In addition, I would have preferred that on both polling day and advance voting days, the names of persons who register on the day that they vote not be provided. This would still give candidates the information they need without unnecessarily burdening the job of the polling clerk.
Senators, in conclusion, I point out that Bill C-31 represents a major change in our electoral process. It will affect every elector arriving at a polling station as well as each of the 190,000 election workers who ensure that voting proceeds smoothly on polling day. There is no doubt that Elections Canada will need the support of all stakeholders to successfully implement this bill if it is passed by Parliament.
My colleagues and I will be pleased to answer any questions you have on this matter.
[Translation]
Marcel Blanchet, Chief Electoral Officer and President of the Commission de la représentation électorale, Chief Electoral Officer of Quebec: Mr. Chairman, I would like to start by thanking you for the invitation to share with you Quebec’s experience with voter identification.
Firstly, I will explain how the system works with the help of some historical references. Until 1999, voters called upon to vote in a provincial election in Quebec would establish their identity verbally. In June 1999, the National Assembly changed the procedure adopting the act respecting the obligation to establish one’s identity before voting and amending other legislative provisions pertaining to elections.
Before I tell you about the procedures in place in Quebec since 1999 for voter identification, I would just like to give you a bit of the background leading up to the enactment of those provisions.
The idea of having to identify yourself with photo ID is not a new one in Quebec. In fact, it goes back a number of decades. Since the 1970s, there has been a recurrent debate about having a voter card to identify voters. Closer to home, in 1996, a parliamentary committee on ID cards and privacy protection, which was set up by the National Assembly, looked into the issue of voter identification at the polling station. The Chief Electoral Officer at the time filed a brief with that committee, recommending the establishment of a voter identification mechanism with photo. To be more precise, the Chief Electoral Officer of Quebec proposed that the Quebec health card be used to identify voters at the polling station.
Two years later, during the Quebec general election of 1998, cases of voter fraud came to light in the riding of Anjou, on the Island of Montreal. These were not isolated incidents in that riding, and the member subsequently had to resign, given the challenge. Some voters were then convicted of identity theft. That kick-started the debate on requiring photo ID for voter identification.
In June 1999, the Election Act was amended. From that point on, in order to establish their identity when voting in a provincial, municipal or school board election, voters were required to present either their health card, driver’s licence, temporary driver’s licence or Canadian passport. Two new pieces of identification have recently been added: the Indian status card and the Canadian armed forces identification card.
Any voter who presents either of these two documents is entitled to vote. Voters who are unable to present either of these two documents may, under the act, be allowed to vote if they satisfy the conditions set out in other provisions of the act. They must then proceed to the voter identity verification panel — there is one at each polling station — and submit their case to the panel members. A voter may have to declare before the panel members that he is the elector whose name appears on the list of electors and is entitled to be entered on the list in respect of the address appearing opposite his name. In addition, he must sign the sworn statement provided for that purpose in the register and meet either of the following conditions: produce at least two documents providing evidence of his name, including one that bears his photograph, or failing that, at least two documents which together provide evidence of his name and date of birth and of the address appearing on the list of opposite his name or his domiciliary address. This could be a Canadian citizenship certificate, a birth certificate, an electricity bill or a telephone bill showing the voter’s address.
The other option would be to be accompanied, as is the case federally, by a person who identifies himself in accordance with the act, attests to the identity and address of the elector, and declares that he has not accompanied any other elector other than his spouse or relative within the meaning of the act. He must produce a document referred to in the act that bears his photograph. This could be a driver’s licence, Canadian passport or Quebec health card, subject to certain exceptions applying to those pieces of identification. For example, seniors are not required to have a photo on their health cards. In addition, he must sign a sworn statement provided for that purpose in the register. That sworn statement shall indicate his name, date of birth and address.
The chairperson of the identity verification panel then provides any voter who has met the requirements of the act with an attestation that he has established his identity through the requisite process. The voter can then go to the polling station and give the attestation to the deputy returning officer, who will then let him vote.
Prior to 2006, the provisions that I have just outlined were applied on a number of occasions. It is a customary practice in Quebec. The provisions were applied in the 1999, 2000, 2001, 2002, 2003, and 2005 municipal elections, the 2003 school board elections and all of the school board bi-elections between 2000 and 2006; the 2003 provincial general elections; and the 2001, 2002, 2004, 2005 and 2006 bi-elections.
In a few moments, I will discuss what happened at the March 2007 general election: as you will recall, voter identification provisions were amended following a decision that I made pursuant to section 490 of the Provincial Election Act, which vests me with the authority to intervene at a legislative level in an emergency, as can my counterpart at the federal level.
I would now like to say a few words about the review of voter identity verification mechanisms that we carried out in the wake of the 2003 general elections. I have provided a copy of the report to the clerk and it is also available on our web page. If you would like some additional copies, please contact our executive secretary who will be delighted to send them out to you.
At the 2003 general election, for the first time in the history of provincial general elections in Quebec, voters had to provide photo identification in order to be allowed to vote. We therefore decided to carry out a review to determine whether the identification mechanisms chosen in 1999 met expectations and whether the way in which they were applied was consistent with the Elections Act.
In December 2003, I tabled a report on our voter identification review in the National Assembly. The review provided empirical evidence to support what we had observed for ourselves. Furthermore, it gave credence to our institution’s position that there is no justification for introducing digital voter cards with photos.
This is another debate that has been going on in Quebec — perhaps you have been following it. I was asked to carry out a comprehensive review of the merits of introducing mandatory digital voter cards with photos. Our review concluded — and I provided a report for the National Assembly on this as well — that no such measure was required to adequately verify the identity of Quebec voters.
Allow me to explain how our review was carried out. We carried out a telephone survey on 1,100 people who work in the field: election officers, PRMOs, deputy returning officers, secretaries, and chairpersons of identity verification panels. One thousand three voters were also surveyed. We wanted to hear their perspective on how the mechanisms worked. Four focus groups comprising returning officers and election officers were organized — one in Quebec City, one in Montreal, one in Sherbrooke and one in Louisville. Lastly, we collected and analyzed information election officers had recorded in the registers both at advanced polling and on election day for the 2003 general election. We produced a statistical overview of the type of identification provided.
All of this information is contained in the report and is worth consulting.
The 2003 review allowed us to draw the following conclusions: firstly, the voter identification mechanisms were applied by election officers according to the guidelines set out by the Chief Electoral Officer of Quebec and they did not give rise to any major problem during the course of the April 2003 general election.
Secondly, the voter identification mechanisms were very well adhered to by voters and election officers.
Thirdly, no deputy returning officer or secretary encountered any major problem with regard to voter identification.
The data reveal that only 4.3 per cent, in other words 16 respondents out of 1,100, had concerns about the identity of certain voters. When we asked them what they did in these cases, 10 replied that they referred the voter to the identity verification panel, and 5 said that they asked for another piece of identification — one respondent did not provide an answer.
The fourth conclusion relates to training: 93.8 per cent of respondents felt that the training they had been given on voter identification allowed them to answer voters’ questions and carry out their work properly.
The fifth conclusion related to information provided to the public as to the requirement to present identification: it was deemed adequate. This is a finding that merits repeating.
The results of the survey showed that 94 per cent of voters knew, before going to the polling station, that they had to provide identification in order to be allowed to vote.
The sixth and final conclusion concerns voters’ reaction to the requirement of bringing identification to the polling station. Ninety-seven per cent of voters said they were in favour of such a requirement. Some people mentioned, for example, that you need identification to rent a film or DVD, a requirement that is even easier to justify when the activity in question is voting.
Everything seems to suggest that this practice both reassures voters that no one will vote in their name and to instil confidence in the electoral process. Furthermore, 94 per cent of voters believe that the types of identification required allowed for adequate verification of voter identity.
I would now like to provide you with some information on the types of identification that voters provided in the 2003 general election. Fifty-one point nine per cent of voters showed their Quebec driving licence, making it the most commonly used form of identification; 46.3 per cent used their health insurance card; and only 1.3 per cent used their Canadian passport. In all, only 0.5 per cent of voters were referred to the identity verification panel on polling day, which means that 99.5 per cent of voters were able to provide one of the three identification documents permitted by the 2003 act, at the polling station.
The document that I sent you includes a list of the other documents that can be used by the identity verification panel to establish someone’s identity.
Based on the results of our review, analysts proposed certain improvements to voter identification mechanisms. I would like to focus your attention on two of them: continuing to allow voters to use the identification documents they currently use and evaluating the possibility of including another one. We did this recently when we added the status Indian card and the military card. As these people are often not covered by the health insurance plan and as they do not necessarily have a Quebec driver’s licence, we felt it was important to make their lives easier by including these two identification documents on the list.
A valid point was raised concerning the requirements to have three people on the identity verification panel. Imagine what it is like having to have three people present at each polling station — they might not have much to do and may get bored. We felt that one person would suffice, even if it means that an available deputy returning officer or secretary would have to go to help out if somebody’s identity had to be verified.
Those of you who followed the recent general election in Quebec will remember the polemic surrounding the identification of veiled voters. It raised an important issue concerning voter identification. In the run up to the general elections, I sought legal opinions and it was confirmed that a veiled voter could follow the identification verification procedure at the polling station without having to uncover her face.
As I said earlier, the identity verification process allows voters to use their birth certificate or certificate of Canadian citizenship, along with a telephone or electricity bill, to prove their identity. We therefore thought there would be no problem; it was not even a matter of reasonable accommodation, as the act provided for such a scenario. A few days before the vote, the provision allowing a voter who could not be identified by the procedure used at the polling station to be referred to the identity verification panel to plead his or her case sparked a wave of controversy. The situation approached mass hysteria. A number of voters threatened to breach the peace on election day if women were allowed to vote with their faces veiled. In order to ensure that the vote ran smoothly, I decided to use the special powers granted to me pursuant to section 490 of the Elections Act to amend the act to clearly stipulate that all voters had to have their face uncovered at the polling station and at the identity verification panel. This measure was, of course, only valid for that particular election. It is up to the government to decide what measures will be implemented for future elections. I am going to make a recommendation in order to avoid a repetition of the awful situation in which we nearly found ourselves. I am worried that Election Day may end up being another Halloween. I had to respond very quickly as newspapers and radio broadcasters were encouraging people to go to vote wearing a disguise. I had to act that very afternoon to nip the situation in the bud. As soon as I had made the decision, everything calmed down and everything ran smoothly on Election Day.
It can be concluded that, in general, the current voter identification mechanisms work well, allow compliance with the Elections Act, and satisfy both voters and all elections officers. Furthermore, the requirement to show identification documents reassures voters that nobody will vote in their name and also instills confidence in the electoral process. The identification documents currently required are adequate and allow us to ensure the integrity of the system.
The Elections Act has to be amended in order to address the issue of Muslim women who want to vote without removing their veil. I would be happy to answer any questions you may have.
[English]
The Chairman: Mr. Mayrand, on February 22, 2007, your predecessor John Pierre Kingsley appeared before the House of Commons Standing Committee on Procedure and House Affairs. Mr. Kingsley was surprised by the Liberal Bloc amendment to put the birth dates of all voters on copies of the permanent voter registry provided to political parties, especially as this information would be made available to political parties. He further stated that “initially we proposed that a birth year be shared to provide another check on the individual who comes into vote.”
Do you agree the bill simply expands the current requirements for voters who are on the list but challenged or those not on the list and who apply for registration at the polls to all voters? What do you say to this amendment made in the House of Commons that is now in the bill?
Mr. Mayrand: Initially my predecessor recommended an addition to the list of electors, an addition of the year of birth. That would be available only to electoral workers to give them another tool to assess the voters’ identity. As the matter evolved, in drafts subsequent to the report and report of the committee in the House and the response of the government, it came out that not only would there be additional tools to identify people, but in fact there would be a requirement to present identity pieces attesting to the identity and address of the voter. If you ask me today, I am not sure that even the date of birth is required, because we have in Bill C-31 stronger requirements regarding identity and address. The initial recommendation was designed simply to help electoral workers confirm the identity of the voter. Electors under the current system do not have to present any identification.
Senator Baker: The first question was an example of a former professor of law asking a former professor of law a question concerning the date of birth.
What is your answer?
Mr. Mayrand: My answer is that under Bill C-31 we would not bring back that recommendation because of the requirement for identity pieces.
Senator Baker: I will ask the question from another point of view, because now I understand it is not required and you do not want it. In the Privacy Act (Can.) (Re.), [2001] 3 S.C.R. 905, 2001 SCC 89, an exchange of dates of birth was allowed between two government departments. It was approved only on the condition that the department receiving the information could guarantee its security and that it would not be disclosed to the public in any way. In this case, Revenue Canada would guarantee its security and only departmental staff would use the information. In fact, it would even have set out the eventual destruction of the information for fear of public disclosure. Can you guarantee the security of the dates of birth of electors in Canada if this bill passes in this form?
Mr. Mayrand: The provision in Bill C-31 would allow a wide distribution of that information. Given the scope of that distribution, I am afraid that I could not fully guarantee the security or that it would be used for the intended purpose. That information will be circulated to a wide range of people with whom we do not have any relations.
Senator Baker: You would say, then, you could not meet the requirements of security as set down in the Privacy Act, as you understand it, or as I have just explained it to you. You cannot meet those requirements, and therefore you do not want to be saddled with the responsibility of having a challenge made in the courts saying it was unconstitutional or some sort of claim being made against your office.
Mr. Mayrand: I would ensure that every elector understood what information is being provided and how it will be used.
Senator Baker: So this could be abused. That satisfies that question. You do not want the information. You would prefer if we amended the bill and took it out. Would that be your preference? Given your responsibility if it stays there, would you not prefer, commissioner, that it be taken out?
Mr. Mayrand: I will leave that to the wisdom of the committee and the House. I will just repeat that for the purpose of Elections Canada and for the administration of the electoral process, given the provisions that will be provided in Bill C-31, it is not necessary.
Senator Baker: You cannot guarantee it is security.
Mr. Mayrand: I would not commit to that.
Senator Baker: Let us go to a different subject and the law that was changed in the province of Quebec by the Chief Elector Officer the day prior to the election. The way it was reported in the news was that you had changed the law. As you just gave evidence before the committee, you used the powers of section 490 of the Elections Act to do it.
Do you see the same power in the Canada Elections Act to enable your friend to be able to do the same thing?
Since you are recommending a provision be put into your law to change the law, would you agree that something should be put into this bill to affect the same determination that you wished to take place in the province of Quebec?
[Translation]
Mr. Blanchet: You have to understand that I do not have carte blanche during election period to amend the act any hold how. If the House of Commons and the Senate adopt legislation providing for particular measures, and if this legislation then receives royal assent, these measures cannot simply be changed unless an emergency arises that requires that the act be amended. If you read section 490, you will see that it provides for me to act in exceptional circumstances to remedy an emergency situation. That was exactly the sort of situation in which I found myself on Friday before Monday’s election. The act stipulates that I must inform the political parties represented in the National Assembly of the decision I plan to make before making it. That is what I did on the Friday morning in question. After having made my decision, I informed the political parties of what I was going to do. It was an emergency situation. It is not within my powers to decide that henceforth the Elections Act will be changed; I cannot change the provision I explained earlier, that stipulates that voters can use birth certificates or telephone bills. It is for the National Assembly, Quebec’s Parliament, to make any permanent changes. The ball is therefore now in Parliament’s court; it is for our elected representatives to decide how this controversy will be resolved. A decision will have to be made, as I had a lot of trouble during spring’s general election.
[English]
Senator Baker: You said a moment ago that you were recommending a change in the law in Quebec. That is what I heard, and that is what I read in French. You said you are recommending that the law be changed. That is your recommendation. My question, of course, would have to be answered by your friend, but I am wondering whether you would suggest to him that perhaps this law should be changed now to accomplish what you are trying to accomplish in Quebec with a change of the Quebec law. Would you recommend it?
[Translation]
Mr. Blanchet: If ever the same problem occurred during a federal election, it would be appropriate to amend the act to introduce a measure similar to the one adopted in Quebec. Is it justified for Canada? In Quebec, it was during a difficult time, and I had to make an important decision under very tight deadlines, but I would say that the National Assembly will have to address the issue, to reflect upon it, and ultimately adopt a measure which will seem appropriate. I imagine that in Ottawa also, in light of my experience in Quebec, the same question will be asked. What solution will be proposed? My colleague will suggest recommendations to you, but ultimately, it will be up to Parliament.
[English]
Senator Baker: Could Mr. Mayrand answer the question?
The Chairman: I will ask him to answer, and then we must move on.
Mr. Mayrand: Those provisions have to be used with extreme caution. It is an extraordinary authority. As my colleague indicated, to suggest a position before the issue happens and knowing all the circumstances around the issue would not be cautious.
It is important to understand that the veils were not the issue, but the reaction to the veils. Today, this time around, it was a reaction to a situation. Next time around, it may be a reaction to another type of unforeseen situation.
Senator Baker: Federally, someone can vote if their face is veiled if they are voting in a federal election, but not in Quebec, because the Quebec Chief Elector Officer took his decision, but in Canada, in a federal election, someone right now can vote unless there is a big uprising at which point you will have to make a decision.
Mr. Mayrand: As of today, you are absolutely correct.
[Translation]
The Honourable Jean-Claude Rivest: Gentlemen, welcome to the committee. As Director General of Elections during a minority government, I find that both of you display a high-level of serenity. At least there is one common element between both the federal and Quebec situations. Do you like minority governments?
Mr. Mayrand: Thank you for your question.
Senator Rivest: In order to strengthen identification mechanisms, were the problems assessed in order to determine whether or not it was truly necessary to enforce these mechanisms?
Mr. Mayrand: I will not hide from you the perception that it is relatively easy to rig a vote. Today, and given all of the efforts to that end, all complaints are examined. We conducted very broad-scope studies in certain ridings. For example, no later than last week, we published a report on the riding of Trinity-Spadina where there had been allegations of illegal votes. Having looked at the case of 11,000 voters who were registered on voting day, I can tell you today that not one single voter would have had the opportunity to vote twice. The study was very exhaustive.
There have been inquiries in other ridings, and in each one of these cases, we were able to prove no systemic steps were taken to manipulate a vote.
Senator Rivest: I know that we want to counter this perception, but there had not been any real important problems to justify doing so. As my colleague mentioned, when we go as far as to include birth dates on electoral lists, we have to weigh in the disadvantages and judgment calls. Even more so since your colleague, the Quebec Chief Electoral Officer, is very satisfied. Identification requirements are well established, but they are not as elaborate as the ones set out in Bill C-31. The same goes for the Ontario legislation, which bears closer resemblance to the Quebec legislation.
I question the need for all of this. But everyone believes that if we are trying to improve things, this is very good.
Mr. Blanchet mentioned a debate that occurred in Quebec on the issue of a voter card. My question relates to my colleague’s concern over registrations on the lists and the concerns raised by the federal Human Rights Commissioner. In Quebec, during the debate on the voter’s card with photo, under the Canadian Charter of Rights and Freedoms, or the Quebec Human Rights Charter, what is the limit of the requirements made upon a voter to make sure that indeed the right person is voting, and voting only once, all the while protecting the rights and freedoms concerning the identity? I believe that some opinions had been expressed publicly concerning a voter’s card. Is it possible to go too far?
Mr. Blanchet: It is precisely the balance between the fundamental right to vote recognized in the Constitution and the requirements set out by government to make sure that a citizen is indeed entitled to vote.
Obviously, we must make sure that the requirements, once again, meet the Charter’s reasonability criteria. The conclusion, as was presented in the report that I produced in the National Assembly on a digital voter’s card with photo, similar to what is used in Mexico, is that it could have met the requirement test, but it was not necessary. It was not justified to reach the goal of verifying a voter’s identity. This requirement goes back to 1998, during a vote in the riding of Anjou, where electoral fraud did occur, which then justified the National Assembly to take action immediately.
However, the rules are somewhat different. At the federal level, it is not necessary to be registered on a voters list on the day of voting. In Quebec, this is an essential condition. To vote in Quebec, one must be registered on the voters list. Since 1995, there has been a distinct procedure to be registered on the voters list, and it was developed as a result of the last census dealing with the referendum. We were very strict on what was to be included on the voters list, such as the date of birth, which also happens to be a requirement in making up the electoral roll. In Quebec, returning officers have lists of birth dates which are also made available to deputy returning officers and secretaries. These lists are distributed three times a year to the political parties represented in the National Assembly. Other political parties may obtain these lists upon request, and they are sent out to members three times a year according to very specific requirements. They are sent a host of documents that detail the obligation to respect confidentiality of the voters list. They are reminded that the list can only be used for election purposes. In the 12 years since the list became part of our legislation, two problems have arisen.
Firstly, a member who also happened to be a minister, used the list to send out birthday cards to voters in his riding. When a complaint was lodged, we immediately put an end to the problem. The second problem involved a genealogical organization that was able to get their hands on the voters list and used it during the general election of 2003. It had posted on its website a fair amount of information, which obviously, according to the evidence obtained, was taken from our voters list. They were forbidden to use it and that also put an end to the problem.
Senator Rivest: Despite the promises made by political parties, you know that when it comes to these voters lists there are many organizers…
[English]
Senator Joyal: I will defer my right to question the witnesses to Senator Watt.
The Chairman: He is not on the list. I have senators Jaffer, Nolin, Joyal and Bryden on the list.
Senator Joyal: I understand, but Senator Watt has an important question to ask concerning Aboriginal peoples. I will not ask questions.
The Chairman: Honourable senators, may I give the honourable senators on my list an opportunity to pose their questions of these witnesses?
Senator Nolin: I will give my right to Senator Watt.
Senator Watt: Thank you. My question is for the Chief Electoral Officer of Quebec. Mr. Blanchet, I wrote a letter to you some time ago and I received a response. I believe I am clear on the procedure that I have to follow. Nevertheless, I have some questions.
Your response indicated that the obligation is on the voters to ensure that the correct information is put forward to ensure that they are on the list of electors. Is that correct for the next election?
[Translation]
Mr. Blanchet: Once again, in Quebec this is a shared responsibility. We have a registry of permanent voters, which includes, at least we hope, the highest number of possible voters who are entitled to vote in Quebec. One way of updating this list is to get information provided to us by the Régime de l’assurance-maladie du Québec. Each week, the Régie informs us about people whose addresses have changed in recent weeks, and this allows us to update the voters list.
We conduct a major advertising campaign in the newspapers and on television. As those living in Quebec know, each voter is sent notice 198.1 to his or her home address. The notice contains the names of the registered voters living at that address. On the notice, voters are asked whether the information is incorrect and are shown the steps to be taken to make any corrections.
We assume that Canada Post, which is responsible for delivering the notices, has delivered them to all addresses in Quebec. Once again, we run an advertising campaign asking people to pay attention and ensuring that those who wish to vote in Quebec are registered on the voters list.
Quebeckers have just been through two elections. At the federal level, voters can register on Election Day, whereas in Quebec that is not possible. A number of Quebeckers ignore the notice and incorrectly assume that they can register on voting day.
Our advertising campaign is perhaps not enough. That is what I will have to review, in light of the cases that you submitted to us.
I have also noticed something that has occurred on a number of occasions. Among the cases you sent to us, and which we examined, it has been pointed out that a number of addresses were changed to post office box numbers — I believe that was what happened in your case, Senator. However, a post office box is not a home address. Consequently, we could not assign a home address to you. Nevertheless, we will now correct the situation. Simply send us your home address. If the address is the same as the one you had in Kuudjuak before moving to another municipality in 2005, the notice I spoke about should have, if Canada Post did its job properly, been sent to your former address, with the indication that “there is no registered voter at this address.” And you would have been asked to complete the steps needed to register.
That is how the system works in Quebec. People must be registered on the voters list in order to vote. The whole process of revising the list is intended to ensure that no one loses his or her right to vote. We are truly sorry when that occurs, but that is how our legislation works. We count on people to help us update the register.
[English]
Senator Watt: This had nothing to do with the people who relocated from other communities. A huge number of people were affected. Many of them were unilingual and they could understand neither the French nor the English instructions. A large number of them could not participate in the last election. It had nothing to do with the fact that they have moved from one location to another. I think this matter can be corrected.
I wanted to mention the rights to use the Cree and Inuktitut languages as stated in the Charter of the French Language, section 95, “The following persons and bodies have the right to use Cree and Inuktitut are exempt from the obligation of this Act except in sections 87, 88 and 96.”
I wonder if whether there could be some correction or a better solution could be found to deal with unilingual people. It does not make any difference to them whether they receive it in French or English. They probably even think it is Revenue Canada going after them— who knows?
[Translation]
Mr. Blanchet: The notice is published in both official languages. It is also available in various aboriginal languages. I do not know whether that was the case in your area. I do not have with me the list of languages into which our documents are translated.
Among the list of people whose names you sent us, half of them did not appear on our list of electors. That means that they had never voted in Quebec — at least not since 1995.
Since 1995, we have been keeping a case history of each voter. It is possible that names disappear from the register because people move elsewhere in Canada or to the United States. However, names are kept on file, and we know where people lived until they moved.
We knew of this problem and we will correct it. I thank you for having reported those cases to us. If people do not point these problems out to us, we have no way of knowing of their existence. The problems that you raised will help us improve our list and we thank you for that.
[English]
Senator Jaffer: I want to thank Mr. Blanchet for the way you handled things in the last election, for the lessons learned because now a precedent has been set. Would I be correct that you want us to specify that you would accept persons with religious veils, not masks, not Halloween masks, but someone who has a religious conviction and is wearing the veil? Would we want it to be more specific? From what we have learned, it would be beneficial for this committee. What would help if it was in the legislation?
[Translation]
Mr. Blanchet: I believe that the act has to be clarified in that regard so as to avoid the kind of event that occurred on the Friday preceding the March 26 election. Once again, the media will want to make a big fuss about an exceptional situation.
To ensure that things run smoothly on Election Day, I believe that the National Assembly has to bring in legislation. That is my recommendation.
[English]
Senator Jaffer: There is nothing specific which would help in the identity. Are you leaving that to us?
[Translation]
Mr. Blanchet: My position on that issue was to require that voters show their faces. Is that what the National Assembly will adopt? That is what I will recommend, to avoid the kind of problems that I had to settle.
[English]
Senator Jaffer: I want to welcome Mr. Mayrand. I am sure we will see you many times in this committee.
I have a real concern on the issue of homelessness. For 30 years I have been taking homeless people to the polling booths. It gives me great concern that I can vouch for only one person. Homeless people might not have many friends. We have run out of time but I raise the issue for my colleagues and maybe off-line we can deal with this issue.
Sadly, in my city, we have many homeless people who do not live in shelters. They live under the bridge and they vouch for each other. If you have other ideas that would be useful regarding this issue of only being able to vouch for one person it would be appreciated.
We have run out of time. I leave that idea. I certainly do not want to see my friends without a home, disenfranchised because of this recommendation. Any suggestions you have would be useful.
The Chairman: Do you want to respond to that now before I turn to Senator Bryden?
Mr. Mayrand: We welcome the opportunity to have a more in-depth discussion regarding reaching out to help the homeless and other groups, but particularly homeless people. We should help them with the opportunity to exercise their right to vote. There are already a number of initiatives in place. I am interested in comments regarding the list of identification pieces put forward to determine whether they would meet the requirements for the homeless and other alternatives we could consider.
Senator Jaffer: I suggest advertising, using also the ethnic media. I am sure you will.
Mr. Mayrand: We do that.
Senator Jaffer: I am being a bit technical. I suggest you could also put besides the certificate, the citizenship card because those are two separate things. I have both. The citizenship card has your photograph while the certificate does not. I am sure you meant to do that but besides the baptismal certificates there are other religious certificates such as the mosque certificates.
The Chairman: That adds some cultural sensitivity to the form.
Senator Jaffer: I am sure you have cultural training. Today is not the time but we can talk about that another time.
Senator Bryden: Bill C-31 amends the Canada Elections Act and the Public Service Employment Act. Can you tell me why there are amendments to the Public Service Employment Act in Bill C-31 and what relationship there is in these amendments to the Canada Elections Act?
Mr. Mayrand: As a result of various reforms of the public service, there have been some changes as to how long you can have term employees. The current rules provide that you cannot have someone in a term position for more than 90 days during a given year, which is problematic for Elections Canada during an election year. In fact, our experience is that we need those workers for about six months. As a result, there was a recommendation to make changes to the Public Service Employment Act, which governs the relationship of government with employees and sets the terms of hiring.
It is proposed to allow the Public Service Commission to pass regulations in exceptional circumstances to allow organizations such as Elections Canada — there may also be others in the federal government — to have a longer term set beyond the 90 days. In fact, in our case, we have been in discussion with the Public Service Commission and have agreed that we will have terms of 165 or 175 days. That would meet our needs.
Senator Bryden: The bill would amend the Public Service Employment Act by adding a new regulation-making authority extending the period of employment for casual employment for any position or person or class of positions or persons. There is no indication in this bill that it relates only to this act. What is more, there is no indication that there is any maximum length.
I do not want to make a long story out of this, but one of the biggest abuses that occur in employment in the public service is that people are hired as casuals or temporaries, and that is the quickest way to get permanent positions in the public service. There is a concern about the regulations under the bill extending the period of employment for any position or any person. I can understand extending the positions, but I have difficulty with extending for “any person.” Excuse me for being just a little bit paranoid. We have just gone through a long experience with Bill C-2, which removed the right of exempt staff for ministers to move from their position to a preferred position in competing for public service employment. Nothing that I have been able to find here would prevent those same people, under a regulation passed by the Public Service Commission, from going from exempt staff on a minister's budget to an indefinite period of casual hiring. It is, in a sense, allowing the abuse to come in by the back door, which the “new government” attempted to remove in Bill C-2.
Do you know, in relation to what you deal with, where this provision of the Public Service Commission Act is limited to simply dealing with the Canada Elections Act? I do not think it is.
Mr. Mayrand: Our initial recommendation was to be allowed to retain terms for 180 days for Elections Canada. For whatever reason, it was determined that the provision would be useful to other organizations in the public service. I would defer to the representative of the Public Service Commission to explain further.
Senator Bryden: I would ask, Mr. Chairman, if we could request the chair of the Public Service Commission to appear before us and answer that question, because it certainly is not clear from what we have here. Thank you very much.
The Chairman: Thank you, Senator Bryden, and yes, we will do that.
Mr. Blanchet, Mr. Mayrand, and Ms. Davidson and Mr. Molnar, on behalf of the committee, I thank you for coming here today and answering questions arising from a number of concerns that honourable senators have about some of the implications of this bill. You have answered with candour and forthrightness, and it will help the committee in its ongoing consideration of this bill.
Honourable senators, we have before the committee Mr. Ian Boyko, Government Relations Coordinator, Canadian Federation of Students; from the Professional Institute of the Public Service of Canada, Ms. Michelle Demers, President, and Mr. Gary Corbett, Vice-President; and by video conference, Mr. Jim Quail, Executive Director of the British Columbia Public Interest Advocacy Centre.
Jim Quail, Director, British Columbia Public Interest Advocacy Centre: I thank the committee for inviting me to speak to this proposed legislation. I am deeply concerned that Parliament might be about to make a terrible mistake that could have serious consequences for thousands of Canadian citizens. One project that I am involved in is preparing a Charter challenge under section 3, on the right to vote, dealing with the voter identification provisions of the bill in the event it becomes law. We are preparing a running start in the event it becomes law to get into court before a federal election can happen. Our clients will be community groups representing seniors, students, tenants, low-income persons, First Nations and the homeless. All of these groups could face widespread disenfranchisement under the rules.
The House of Commons committee that initiated the amendments argues that they are needed to improve the integrity of the electoral process. I suggest that the most efficient way to destroy the integrity of the electoral process is to block eligible citizens from exercising their democratic franchise. The provisions create two distinct conditions that must be met by voters and this we must bear in mind: They have to possess and produce documentary proof of their identity and proof of their place of residence. Each of these conditions will result in people being denied a vote.
The default requirement is a government-issued document with the voter's photograph and current address. The only widely held document that fits that description is a driver's licence. For example, a passport is issued without your address printed in it. The alternative is to produce two pieces from a mystery list that has not yet been produced that will have no parliamentary oversight whatsoever that together indicate the voter's identity and current address. We do not know what those two pieces will be, but perhaps they will be a passport and a utility bill, for example.
Voters who possess and carry a driver's licence when they go to the polls will not have any problem but others will be in jeopardy of losing the right to vote. The risk of disenfranchisement will not be equally distributed. For example, seniors and people with disabilities are less likely to have a driver's licence. They are also much less likely to be able to make a return trip to the polls if they are sent home the first time because they do not have the two other pieces of identification.
By definition, the rules will disenfranchise anyone who is homeless because the homeless do not have an address capable of being captured in an identification document. I urge committee members to imagine the situation on voting day when voters are used to showing up at the polls, voter identification card in hand to confirm that they are on the list. Now, unless they can meet these new mandatory identification requirements, they will be refused a ballot.
If they are not able to meet the requirements, their only hope is to have someone vouch for them. The neighbour who would vouch for them would have to be from the same polling division; a polling division is the smallest subunit in the electoral map with a minimum of 250 voters. In a big city, that can be as little as one-half a block. For practical purposes, if you are in such a situation and you do not happen to know your next-door neighbours in your high-rise apartment building, you probably cannot produce someone who legally can vouch for you, so you lose that option as well. Even if you can find someone, the person can vouch for one other voter only, so your neighbour cannot vouch for both you and your spouse. I have never seen any intelligible reason advanced for this restriction.
The consequences of sending any citizen away from the polls are serious. For many it will mean losing the right to vote, and that includes anyone who happens to come to the polls late in the day. Mr. Kingsley, the former Chief Electoral Officer, has predicted that some 5 per cent of voters will be unable to cast ballots as a result of these rules. In the last general election, there were about 14.8 million ballots cast; 5 per cent of that number is 740,000 voters.
Unjustly refusing even one Canadian citizen a ballot is a serious Charter violation. The Supreme Court of Canada told us this in the Sauvé case when it struck down the prohibition on federal prisoners voting and said:
Charter rights are not a matter of privilege or merit, but a function of membership in the Canadian polity that cannot lightly be cast aside. This is manifestly true of the right to vote, the cornerstone of democracy, exempt from the incursion permitted on other rights through section 33 override in fulfilling their constitutional duty to protect the integrity of this system.
The notwithstanding clause cannot apply to the right to vote. Thus, courts considering denials of voting rights have applied a stringent justification standard.
The irony is that under the proposed rules, federal prisoners will have a more secure ability to vote than many law-abiding seniors, people with disabilities, students and poor people.
I hope that the Senate will take a close look at the amendments and consider how much the amendments would sacrifice based on anecdotal and hypothetical justifications.
There is no real evidence of a significant problem of voter fraud in Canada. Our problem is that too few citizens participate in our electoral process — not too many. No system is perfect. There will be some degree of abuse in any democratic process. The voter identification amendments will constitute a cure that is immeasurably worse than the alleged disease. I urge the Senate to reject Bill C-31. Thank you.
Gary Corbett, Vice-President, the Professional Institute of the Public Service of Canada: My name is Gary Corbett and I am Vide-President of the Professional Institute of the Public Service of Canada. I am sorry that Ms. Demers cannot be here today because she is ill.
On behalf of the PIPSC, I thank honourable senators for the opportunity to comment on Bill C-31, which deals primarily with amendments to the Canada Elections Act. However, for the purposes of this presentation, we will limit our comments to two amendments of the Public Service Employment Act, section 40 and section 41, which pertain to casual employment. For the purposes of brevity, I will not read the two amendments, with which senators are familiar. These two amendments seem rather innocuous but they could have significant impact on the employment patterns in the federal public service, in particular at a time when the government has called for more flexibility in departmental hiring.
There are a number of reasons for us all to be concerned about the proposed legislative changes that could increase the use of casual employees in the federal public service. First, casual employees do not enjoy the employment benefits or the job security of their colleagues in indeterminate positions or even in term positions. They do not enjoy the benefits of union membership, such as collective agreement or access to the grievance process. The expansion of casual status moves the public service toward a two-tier system in which regular employees enjoy job security and benefits while casuals do not enjoy such benefits.
Second, it is not in the public interest to have employees with little personal investment in their jobs, with no institutional memory, and who may not necessarily feel respected or loyal to the department. To receive loyalty, you have to show loyalty. The incident last week at Environment Canada involving an employee who disclosed confidential information is one example of the consequences of dealing with loyalty issues and people who are not permanent employees.
Third, we also share the concern raised by the President of the Public Service Commission, Ms. Maria Barrados. In an interview with the Ottawa Citizen in October 2006, she warned that the lack of long-term human resource planning will lead to a crisis. Ms. Barrados said that departments are so focused on filling the day-to-day jobs that they are not really planning for the workforce of tomorrow or for the future. As a result, managers rely on temporary stop-gap staffing, such as hiring casuals. Nevertheless, Bill C-31 gives the Public Service Commission apparently unlimited power to extend casual employment through regulation. The practice of casual staffing is overused. The Ottawa Citizen reported that of the 45,000 people hired in 2005, only 15,000 were permanent or term positions.
Expanding the use of casuals through Bill C-31 is a direct affront on the integrity of the entire staffing system. In other words, it is a way of circumventing the provisions of the Public Service Employment Act, in particular the hiring of employees on the basis of merit if casuals do not face the same scrutiny as permanent employees. To be sure, there are some perfectly legitimate uses for casual employees, such as staffing short term during times of peak demand.
The Canada Revenue Agency hires casuals at tax time. Another example is short-term emergency replacements for people who become ill or who have been called away from their regular duties. In recent months however PIPS has seen casuals employed carrying out core functions in departments, sometimes for periods of up to two and three years. This use of casuals goes against the spirit if not the letter the existing legislative provisions governing casual employment in the federal public service. The use of casual employees by Elections Canada during election campaigns is a perfectly legitimate use, and we support the Chief Elector Officer's desire to obtain more flexibility with regard to the hiring of casuals for such a purpose.
We cannot, however, support any legislation which appears likely to increase the use of casuals throughout the federal public service as, in its present form, Bill C-31 does. Accordingly, we propose special legislation be passed allowing Elections Canada to hire casuals to work during election campaigns, but eliminating any provisions which refer to the PSC's new power to increase the use of casuals through regulation. Another option could be legislation specifically limited in its application to Elections Canada.
In conclusion, at a time when the public service is already suffering from the numerous morale problems, as noted in the federal employee survey and facing as well the impending departure of a large number of employees based on the demographics, the proposed amendments would take the public service in the wrong direction. Such sweeping legislation as Bill C-31 is not needed to provide the Chief Elector Officer with sufficient flexibility to conduct the business of his office during campaign elections.
For reasons cited above and on behalf of the Professional Institute of the Public service of Canada, we urge honourable senators to reject the two proposed amendments contained in section 40 and section 41 of Bill C-31.
Ian Boyko, Government Relations Coordinator, Canadian Federation of Students: I will summarize my remarks because we are running out of time and we share the many of the concerns, if not all of the concerns of the first witness. There have been comments made in the chamber already that suggest that some senators have already made up are their minds. This is the Trinity-Spadina amendment in terms voter identification.
I was interested to hear the Chief Elector Officer that after an investigation there were some 11,000-odd voter day registrations and they could only find, after investigation, one example of voter fraud. This is, if you do not know the geography of Toronto, the riding where the University of Toronto downtown campus is located. Fifty thousand students attend that school and many live in that riding. A number like 11,000 voter day registrations is unusual for a riding like that.
There has not yet been demonstrated the extent to which there is voter fraud that might require some amendments that are being proposed in Bill C-31. Students who live in communities away from their permanent residents already have difficulty maintaining identification with their current address. It is not uncommon for students to move once a year during their study period. This situation makes it very likely that student voters, who have not exercised their right to vote in the past, will face significant obstacles to casting their first ballot or may not cast it at all. What will that do for creating a culture of voting among young people?
There have been accommodations made for students in the past. Some of them work, many have not. Nothing proposed in theses amendments will move beyond temporary fixes whose success ultimately rests in the hands of the local returning officer, which can be problematic depending on who that is.
I want to comment today on the narrowing of the vouching provision. We agree with the comments made already by Senator Baker who used the example of senior citizens from a long-term care facility who may be prevented from voting because the staff person from that facility cannot vouch for a group of these seniors. A similar situation can arise for students living in a university or college residence. It is likely that many, if not most, residence students will not have an acceptable form of identification with their current address in this short-term housing. These two provisions pose serious concerns for students in terms of casting that first ballot and creating a culture of voting among young people.
I look forward to your questions. We have a couple of ideas about improving the bill but I will leave them to the question period. Thank you again. We are delighted to make this presentation today and we were happy to be invited.
The Chairman: I am delighted you came because it is important to hear from students, particularly students in a large university like the University of Toronto in an area with 50,000 students who have a right to vote.
Senator Joyal: Mr. Quail, I know you are far away but we appreciate you making yourself available with the other witnesses this afternoon.
I would like to concentrate on a group of citizens who happen to have the right to vote under section 3 of the Charter: “Every citizen of Canada has the right to vote.” If you qualify for citizenship you have the right and that is clear in the Charter. The Supreme Court of Canada has clearly interpreted that right in the most extensive manner. In other words, the Supreme Court did not see any exception if you have the right of citizenship and you refer to the decision of the court. If we are to restrict that right, we must have very good reasons. We must meet the test that the court has established. Why should you deprive someone from voting if his or her socioeconomic condition does not really lead you to believe that the person will commit fraud?
The first class of people we must take into account are the analphabète. These people encounter the most difficult obstacles in the voting system. I have been a MP for a long time and my riding office was often filled with seniors and others with that social disability. The secretary in the riding office filled out the various forms that they had to file to get a card, income tax or any kind of benefit. According to this bill, my assistant would not be able to vouch for more than one person. We find a similar situation at the well-known shelter in Montreal, l’Accueil Bonneau. The nuns who run the shelter know the names of beneficiaries of their services, yet they could not vouch for them.
If we went to the Supreme Court of Canada with those kinds of situations, they would not meet the test of the court under section 3. On page 9 of the bill it reads, “No elector shall vouch for more than one elector at an election.”
Mr. Chairman, there must be a way to rephrase that if we want to prevent people from selling their services to vouch for voters. A person who has been in a position of public authority like a teacher, for instance, a university or college professor, or someone who has provided services to that group of people could be permitted to vouch for more than one person. I am sure there is a way to qualify that prohibition in a way that would meet the test of the Charter.
There is a very important Charter issue in this bill that would touch many of the people you have mentioned, including students and the Aboriginal people. Perhaps you heard Senator Watt reporting about the Aboriginal people who speak Cree or Inuktitut but not English or French. The same case could apply in the rest of Canada with other Aboriginal languages. This is a very important Charter challenge. Are you considering that in your Charter challenge options?
Mr. Quail: Yes, senator, we certainly are considering those options. You raise a number of important points. First, I did hear Senator Watt's comments. One of our petitioners is a status First Nations person. He had spent some time in his youth in prison, but since then has cleaned up his life. He is a poor man living in the Downtown Eastside, which is the poorest part of Vancouver. A week after his release from prison, his ID was stolen, including his status card. He will be getting another one, and he told us that he will punch a hole in it and put it on a chain around his neck, because that is what you have to do to not be robbed in that community. That still would not entitle him to vote. He would still have to come up with another document or find someone to vouch for him.
Another problem in the vouching rules needs to be addressed, and that is that the person doing the vouching has to live in the same polling division. For someone who works locally, in the case of Downtown Eastside in a shelter or in the community centre, it would make sense that he or she should be able to vouch for a large number of people. They see them all the time.
The requirement of indicating an address is effectively disfranchising people who are homeless, just by definition. They do not have the kind of location that will show up in any kind of document. There is a whole host of problems. People who cannot read and write will obviously be seriously affected, and they also tend to be poor people because there is not a lot of opportunity in our society and economy for them. They tend to be people who will have many different categories of reasons that will squeeze them out of the picture.
The Supreme Court of Canada was emphatic that if you are a citizen, you have a right to vote. Any conditions added to that are infringements of the Charter, and the government would have to justify them under section 1. If the best it can come up with is maybe one person in Trinity-Spadina, I hate to predict that any legal case will be a cakewalk. That invites all kinds of terrible things to happen. We expect that the government will be very hard pressed, if this legislation is enacted, to meet the Charter test in this case.
Senator Joyal: Were you able to testify at the House of Commons and raise those Charter issues with the members when the bill was debated and voted on there?
Mr. Quail: Yes, I did. It was late November, and I was told by one member of the committee that I might be an expert in legal matters, but they are experts in political matters, and they have a political problem. That may be a legitimate political discourse, but I suggest it will not pass muster before the courts when we come with section 3. The person I referred to is a case in point. If he had not cleaned up his life and were still doing time in a federal prison, he would get to vote. As it is now, it is questionable whether he will or not. He does not have a permanent home address, and he does not have any ID. He will get his status card replaced, but that is still not enough.
Senator Jaffer: Mr. Quail, I have been very preoccupied with this bill because I think this is taking away rights of the poor people in Vancouver with whom I work. I will be very specific because I know their issues. For over 30 years, they have been able to go to a polling station and vote. I cannot see them being able to jump through all these hoops of having a picture and an address. If you do not have an address, someone in that poll has to vouch for you. It is very complicated. In the example that we just heard, maybe a nun could go and vouch, but if she did not live in that poll, then she could not, and she could only vouch once. These are big challenges.
You have given some thought to it and, if I have heard you correctly, you are saying that this is not good law. If we were to amend, do you have any suggestions on how we could do that to ensure that the people who have the least rights are protected?
Mr. Quail: The problem with amending is that there are categories of people who have no ID whatsoever. The solution we found in the past for getting people registered to vote is a number of volunteer lawyers, including myself, went into the Downtown Eastside and assisted people by swearing statutory declarations identifying them. They were acceptable for registering people on the voters list. That will no longer suffice. If there were a procedure where, if someone does not have ID or arrives without any, there were a prescribed declaration available in the polling place. Such a declaration would involve the person swearing to his or her identity and place of residence. That place of residence could be a doorway across from the community centre or most of the time in a shelter. The person would be given a ballot based on this declaration. The scrutineers would have the opportunity to object. I suggest that would satisfy pretty well all the requirements. I also suggest a sworn declaration is much better proof or insurance than almost any other kind of form of identification because it is a crime to swear a false declaration. Who knows what will be on the list from Elections Canada. If the voter’s utility bill is on the list how will that help a person who lives on the street. People who live in the streets do not have utility bills, or people who live in single-room occupancy hotels do not get utility bills, but a sworn declaration is very compelling evidence.
In terms of photo ID, people need to bear in mind that none of that is free. You pay for a driver's licence and for provincial ID cards. No one gives this stuff out for free. There has to be some solution that will work in the scenario where people arrive at the polls on election day, the poll will close in 10 minutes, and they do not have their ID with them. They must be given an opportunity to vote. A simple process at the polling place, I suggest, is the only real solution. It would also help to broaden the rules as far as vouching. That might avoid having to swear a lot of declarations at five minutes before closing time of the polls. It would be a convenient expedient as well.
Senator Jaffer: The other challenge is how you identify who is a Canadian citizen. In the last election, I had many challenges with homeless people who look like me and are also Canadian citizens. They even have to go through yet another hurdle. They may be born here but do not look like what we think a Canadian citizen looks. Those are more challenges. That is how some people will not be able to vote, because it is challenged that they are not Canadian citizens.
Mr. Quail: Absolutely, but when I got my driver's licence, no one asked me my citizenship. These rules will single out particular categories of people who will be scrutinized more closely or who will not have the kind of documents that affluent, middle-class people tend to carry with them. Those people would get singled out and would lose the right to vote. The right to vote does not belong to the House of Commons or to Parliament or to the government; it belongs to the citizens, and no one can take it away from us.
The Chairman: Mr. Quail, in response to Senator Jaffer's question, you said the solution for a homeless person is some simple process at the polling station. Imagine a homeless person without a passport, a driver's licence or a credit card. What is the simple process that you would like to see at the polling station?
Mr. Quail: I would like to see a process where they arrive at the polling station and indicate who they are and if they do not have any form of identification, the staff at the polling office can pull out a standard, prescribed-form declaration. That declaration includes the person’s name and residence. The person then swears an oath, affidavit is filed away, and the voter receives a ballot.
I suggest that is far better evidence than most of the documentation that people will provide in the normal course. It should also indicate Canadian citizenship and the other requirements. I suggest it could be quite simple and exactly the format that we used in the past in the Downtown Eastside to get homeless voters registered.
Senator Bryden: I would like to address the question of casual employment. My understanding of the history of casual employment as it relates to elections is that the former Chief Elector Officer found that 90 days was a little too tight, and a bill was drafted moving that to 125 days.
By some catastrophe, the government fell and so the bill died.
What we have here is a long reach beyond increasing the limit for casual employment for the purpose of elections from 90 days to 125 days. This bill amends it, extending the period of employment referred to in subsection 50(2), the casual employment section, for any position, not just electoral, any position or any person or class of persons of positions or persons. It has no limit on it and it applies to an unlimited universe of people who would work in the public service. Do I understand this correctly?
Mr. Corbett: Yes, that is our understanding of it. It even applies outside of the elections process, the Chief Elector Officer requests. Because of the way it is written, it does apply, broadband, and that is our concern.
Senator Bryden: It used to be that casual employment was used to prevent people becoming continuing employees. You would go up to your casual limit, 90 days or whatever, then you would be laid off for a day and then hired back. That was to ensure you did not become an employee for a continuous period of six months or more so you could qualify for benefits.
Is that still the case? Can a person, as a casual employee become, by dint of the fact that he or she is there a long time, an employee for the purposes of the Financial Administration Act?
Francine Pressault, Media & Government Relations Officer, The Professional Institute of the Public Service of Canada: We have cases of abuse. We have departments where the professionals we represent have been hired as casuals for 90 days, which is the current term of the contract; they get a day off, and are rehired. Some people have been casual employees for up to three years in some departments. We fear that Bill C-31 would blanket the whole approach, would use a jackhammer to kill a mosquito. It is too broadband and should be limited to the needs of Elections Canada for their purposes.
Senator Bryden: The other side of that, where managers misuse the limited term in order to keep their budgets down and not get permanent employees, is that casual employment becomes the quick entryway into permanent positions.
I have a statistic here that is hard to believe. The Public Service Commission 2004-05 Annual Report noted that approximately 65 per cent of those hired permanently in the federal public service in that year were hired from a pool of temporary workers. The bar is much lower. It is not by examination; they do not go through the same scrutiny. That is my understanding; I should not be putting words in your mouth.
Is that also an easy way for people to get their sons and cousins, et cetera, into the public service?
Mr. Corbett: As we reflected in the brief, it is a way that people are definitely entering into it. With respect to scrutiny, absolutely the scrutiny is far less in this procedure to hiring a casual worker than to hire new indeterminate staff or even a term worker, being six months or a period beyond the number of days, whether 90 days or 125 days.
Senator Bryden: What are the minimum qualifications for someone coming into the public service in whatever capacity to be able to become a member of your union?
Mr. Corbett: Indeterminate or term employees can become members, but you must serve a six-month period. I could be corrected on that.
Senator Bryden: As a casual?
Mr. Corbett: Not a casual but as a term employee. There are differences. There are categories of employment: casual, term, indeterminate, and some other categories as well. A casual is used when you need quick turn around. The example I mentioned was the Canada Revenue Agency which, at tax time, needs a lot of casual employees just to keep up with the demand.
Ms. Pressault: Casual employees do not have the same benefits or enjoy any of the benefits of the regular indeterminate or even determinate employees in the public service. Therefore the provisions of the Public Service Employment Act do not apply.
Senator Bryden: To be clear, the rules as to when they can join the union are not your rules; they are government rules?
Ms. Pressault: That is correct.
The Chairman: Mr. Quail, Mr. Boyko, Mr. Corbett and Madam Pressault, on behalf the committee I want to thank you very much for your appearance here today.
The two issues that were discussed by this panel are issues the committee is wrestling with and giving very serious consideration to. You have practical experience in those areas, and the comments you have made to this committee are very helpful, and we thank you for that.
The committee adjourned.