THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE


OTTAWA, Tuesday, April 8, 2014

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 1:30 p.m. to examine the subject matter of Bill C-23, An Act to amend the Canada Elections Act and other Acts, and to make consequential amendments to certain Acts.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good afternoon and welcome colleagues, invited guests and members of the public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

We are continuing our pre-study on Bill C-23, An Act to amend the Canada Elections Act and other Acts. This bill proposes amendments to numerous aspects of Canada's electoral law, 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.

For our first witness panel this afternoon, I'm pleased to welcome to the committee, from Elections Canada, Marc Mayrand, Chief Electoral Officer of Canada; and Stéphane Perrault, Deputy Chief Electoral Officer, Legal Services, Compliance and Investigations.

Welcome, gentlemen. Mr. Mayrand, you have some opening comments?

 [Translation]

Marc Mayrand, Chief Electoral Officer, Elections Canada: Mr. Chair, it is a pleasure to appear today as part of the pre-study of Bill C-23. Given that this is a pre-study, I thought it would be useful to take a step back and provide you with my perspective on the key objectives underlying our electoral process, as well as the important challenges that we currently face. My hope is that this will assist the committee in assessing whether Bill C-23 helps address those challenges.

While I intend to highlight certain elements of the bill in my remarks, I do not plan to enter into a detailed review of the various changes I recommend. I have brought a table indicating what those changes are and would be happy to discuss them after my introductory remarks, if the committee so wishes.

The legal framework governing Canadian elections is a reflection of certain key values or fundamental democratic objectives, namely: accessibility, fairness and trust. In modernizing the electoral process, it is useful to consider these objectives.

By “accessibility,” I refer both to the legal right to vote and be a candidate in federal elections, as well as to the actual means of exercising that right. Under our Constitution, every Canadian citizen is guaranteed the right to vote. That right is made meaningful, however, only to the extent that there is a proper legal and operational system in place allowing it to be exercised.

Over the years, not only has the right to vote expanded, but barriers have been removed by providing more options for voters, with the aim of giving all Canadians, no matter their particular circumstances in life, a true opportunity to exercise their right to vote. While barriers do remain, in particular for electors with disabilities, our constitutional obligation is to strive to reduce those barriers. It is also our international commitment under the United Nations’ Convention on the Rights of Persons with Disabilities.

A second fundamental objective of our electoral system is fairness. By this, I mean a system where those who compete for electoral success do so under conditions of relative equality. The expression “level playing field” is often used by the courts and experts to describe our regime of limits on election expenses, which serves to ensure that elections are not dominated by those with access to greater resources. Limits on contributions, in conjunction with public financing, similarly contribute to the level playing field.

Fairness also means a process for administering elections that is free from partisan bias or the appearance of it. In this regard, fairness is also linked to the third objective, which is trust.

The importance of preserving trust in the integrity of the electoral process is reflected in the various procedural safeguards that protect against fraud in the electoral process, and that ensure the transparency and reliability of results.

Trust also depends on timely and effective enforcement mechanisms that promote compliance with the rules and address cases of non-compliance when they arise. In our system, enforcement is primarily the role of the Commissioner of Canada Elections.

Given these three objectives — accessibility, fairness and trust — what then are the main challenges facing our electoral democracy?

In my view, the single most important challenge facing our democracy today is the decline in voter participation. Declining turnout is far from unique to Canada and is not a recent phenomenon. But our participation rate is one of the lowest among advanced democracies.

The decline in voter participation is mainly driven by the decline in youth turnout beginning in the 1970s. We know from our research that young adults who do not vote in their first election tend to also not vote as they get older. This is why civic education programs are so important. There are, however, encouraging signs. From 2004 to 2011, first-time turnout has levelled off and is showing signs of increasing.

There are, nevertheless, electors for whom participation is a challenge. With a rapidly aging population, this is increasingly true of seniors. They tend to be less mobile and have more difficulty with the voter identification requirements, in particular the requirement to prove their address. This is why, at the last general election, I authorized the use of the voter information card, along with another piece of ID, at certain voting locations — namely, in seniors homes, student residences and on reserves.

Building on our own experience of the last election and that of other jurisdictions, and in consultation with political parties, we have been planning to allow the use of the VIC as proof of address, along with another piece of ID, for all electors in 2015. This would serve to remove barriers, as well as to reduce the recourse to vouching, which has proven complex for election workers to administer.

In this regard, a second important challenge for our electoral system is the complexity of the rules. Overly complex rules can create barriers to participation or situations of non-compliance that undermine trust in the integrity of elections.

This is a problem with respect to the voting procedures, which are administered by some 200,000 ordinary Canadians with limited training and often no prior experience. While the system was originally simple, successive amendments, and in particular the voter identification rules enacted in 2007, have made it much more challenging for poll workers.

Complexity also presents a challenge with respect to political financing. Again, this is a situation where the rules have become considerably more complex in recent years through successive reforms. And here as well, the regime relies largely on the work of volunteers serving as official agents for candidates. They are responsible for ensuring that the campaign respects all of the requirements of the Act.

It has become increasingly difficult for these volunteers to understand and to comply with the regulatory requirements. In my recommendations to Parliament, I have strived to identify ways of reducing the regulatory burden and of simplifying and clarifying the rules for the benefit of all participants.

Finally, a third challenge that we face is the lack of adequate compliance and enforcement mechanisms to ensure timely and effective responses to contraventions.

Currently, the Act deals with regulatory non-compliance exclusively by way of criminal offences and criminal sanctions. This is a heavy-handed and time-consuming approach. It is ill-suited to the majority of cases of non-compliance that would be more effectively addressed by way of administrative sanctions.

In cases that do warrant an investigation, experience shows that the commissioner lacks the proper tools to conduct his investigation in an effective and timely manner. Moreover, the fines currently in the Act are not sufficiently severe.

[English]

I will now turn to Bill C-23 itself. In reviewing the bill, I would invite this committee to consider the impact of its provisions on the challenges I have identified, as well as on the main objectives of our electoral framework.

Some elements of Bill C-23 will help address some of our challenges and support the key objectives. The addition of one more advance voting day will provide more convenience for Canadians casting a ballot. I also welcome the proposed increase of the fines. More importantly, I believe that the introduction of administrative sanctions — for instance, of overspending by political parties or candidates — is a positive development. It is a move away from the traditional model of criminal sanctions, and I certainly hope that it will serve as a precedent for future reforms.

Bill C-23 also includes a number of reforms which, while positive, require amendment in order to produce their intended benefits. This is the case, in particular, with the proposed regime for guidelines and written opinions. These could be extremely useful tools but are unworkable as provided for by Bill C-23.

Changes are needed to allow rulings to be made in a reasonable time frame. Others are also needed to prevent partisan abuses that could result if political parties are allowed to require formal rulings on matters under investigation or pending before the courts. In addition, if rulings are to be legally binding on the Chief Electoral Officer and the commissioner, they should be equally binding on the external party compliance auditors.

The regime for voter contact services must also be improved. In order to be useful, the regime must not only require information on service providers, clients and scripts, but must also require the retention and production of telephone numbers that are called. As well, calls made for political parties and candidates by their own staff or volunteers should not be exempted from the disclosure requirements. As it stands, it seems that the proposed regime would increase the regulatory burden on political parties and service providers without significantly improving the integrity of the process and the ability to conduct timely investigations.

Finally, a number of aspects to Bill C-23 are deeply concerning, and I feel it is my duty as Chief Electoral Officer to inform Parliament of those concerns in the clearest possible terms.

I would like to focus on five in particular. The first of these is the proposed restrictions on voter identification; namely, the removal of vouching for electors who cannot provide documentary proof of identity and address, as well as the prohibition in using the VIC along with another piece of ID.

It has been argued that all electors should have ID documents to vote, but this is not the problem. The problem for a significant number of Canadians is to have documents proving their current address. The notion that all Canadians have in their possession documents establishing not only their identity but also their current residential address is simply wrong and not borne out by experience. For example, seniors living in long-term care facilities often do not have drivers’ licences, hydro bills or even health cards, which are typically kept by their children or facility administrators. Young Canadians commonly live at home or, as students, move frequently. They often do not have any documents to prove their current residential address.

Overall, we estimate that approximately 120,000 active voters rely on vouching, and we can expect that a large proportion of them would not be able to vote under the proposed rules.

Just as importantly, in the absence of any credible indication that vouching or the VIC are used fraudulently, their removal would compromise accessibility without in any way enhancing the integrity of the electoral process. We have not been able to find any other jurisdiction in Canada where a requirement to provide documentary proof of evidence to vote is not also accompanied by a safety net, such as vouching or a statutory declaration.

Mr. Chair, I have distributed a table that describes the situation for the purpose of voting across all 14 federal, provincial and territorial jurisdictions across the country. You will know that only four jurisdictions require proof of address, and in all cases vouching is an alternative to providing documents.

A second aspect of Bill C-23 that is cause for serious concern is the fact that it will diminish the level playing field in two ways: by increasing spending limits and, more significantly, by introducing an exception for certain fundraising expenses, effectively creating a loophole in the regime. It is hard to conceive of soliciting funds without promoting a party or a candidate. There is also no way of monitoring whether the individuals being solicited fall into the permissible category of previous donors, since the act does not require reporting the name of contributors who give $200 or less, which represents the vast majority of donors.

There is also no requirement to report which contributors were contacted pursuant to the exemption. The fundraising exception is simply unenforceable and is an open invitation for abuse.

A third aspect of Bill C-23 that I find troubling is the prohibition on the Chief Electoral Officer of Canada providing information to the public on any subject matter except, essentially, how and where to register and vote. Of course, it is important that Elections Canada provide public information on these basic questions. In fact, it should be noted that in the last election, 98 per cent of our communication and outreach expenses were focused precisely on that task.

The proposed measure would not simply continue to make this a priority; it would ban all other public communications, effectively prohibiting us from publishing basic research, participating in civic education initiatives, or informing Canadians of fraudulent activities or on measures to prevent them.

The Chief Electoral Officer needs to be able to speak freely and openly about any aspect of the electoral process. The restrictions imposed would limit my ability to properly administer and supervise free and fair elections, and they would undermine public confidence in our electoral process.

A fourth area of concern regarding Bill C-23 is the weakening of the commissioner's ability to effectively intervene and enforce the Canada Elections Act. Both the former and the present commissioners have indicated that the commissioner's effectiveness depends on having direct and unfettered access to information and expertise within Elections Canada. They are also concerned that placing the commissioner within the Office of the Director of Public Prosecutions would undermine the commissioner's ability to intervene during an election period in coordination with Elections Canada and election officers to resolve situations of non-compliance.

Both have also stressed the importance of amending Bill C-23 to include the power to seek judicial authorization to compel witnesses to testify. They have indicated that the absence of such power has been an important challenge in getting to the facts and major investigation of election offences.

Fifth, and finally, I do not believe that Canadians’ trust in the integrity of their electoral system is improved by the addition of central poll supervisors to the list of election workers nominated by political parties. All election officers should be appointed based exclusively on merit, in particular, central poll supervisors. In my view, this provision should be deleted from the bill.

When I look at all these issues and consider the important challenges that face our electoral democracy, I cannot help but conclude that changes to the bill are required — changes that include but go beyond issues related to voter identification.

I hope that this committee and the Senate as a whole, in their wisdom, make the necessary changes to the bill in order to allow a broader consensus. I believe this is critical to foster trust in our electoral system, and I would be happy to assist in that regard.

As I indicated at the outset, I have brought with me a table of proposed amendments. I'm certainly open to exploring other alternatives with the committee.

Mr. Chair, I would be pleased to answer questions.

The Chair: Thank you, sir. We'll begin questions with the deputy chair of the committee, Senator Baker.

Senator Baker: We thank the witness, probably the most important witness we'll hear from concerning this legislation, the Chief Electoral Officer of Canada.

Mr. Mayrand, you testified a few moments ago that when the rules changed in 2007, it made things more challenging for poll workers and that some irregularities would have occurred. The evidence that we've heard before the committee this morning was that there were 50,000 irregularities in one case and over 100,000 irregularities in another case concerning the last federal election. You would know about those irregularities because you're the only person who has the authority to reopen the sacks that contain the evidence. I noticed you said “estimates,” so I imagine you didn't count them all; you made an estimate.

Mr. Mayrand: Yes.

Senator Baker: That 120,000 were vouching.

Mr. Mayrand: Vouched for.

Senator Baker: In all of those errors that were made, did you see any evidence or do you have any evidence to give to the committee on how many of those errors actually caused somebody to vote who should not have voted, or fraud during that election campaign?

Mr. Mayrand: This whole matter of errors came through a case, the Etobicoke election, which was contested and went to the Supreme Court of Canada. In the course of that case, issues were raised regarding voter registration and voter vouching. A number of errors were pointed out to the courts in those cases. In the end, the Supreme Court of Canada said that bookkeeping errors are not irregularities in themselves, and that the vast majority of issues that were found were bookkeeping errors — improper bookkeeping by electoral workers. There was no indication of two things: no indication of any malfeasance by workers; and, second, the court was satisfied that there was no reason to believe that any ineligible electors would have been allowed to vote.

Senator Baker: That's the important point, isn't it?

Mr. Mayrand: I would think so.

Senator Baker: You would think so. All of these irregularities probably involved a long-term facility in which the nurse probably vouched for a patient. Am I giving a good example?

Mr. Mayrand: Yes. In a case, a nurse vouched for 29 electors.

Senator Baker: Just imagine. That's an irregularity. Shouldn't have done it, but no doubt that person had a right to vote.

Let me get to the very important statement you made a minute ago. I'm going to quote you, because this is the disturbing statement you made in your presentation:

Overall, we estimate that approximately 120,000 active voters rely on vouching, and we can expect that a large proportion of them would not be able to vote under the proposed rules.

You're telling this committee that tens of thousands of people who were eligible to vote in the last election will not be able to vote with the passage of this bill.

Mr. Mayrand: Yes. The only fail-safe provision for people who are challenged in proving their identity and address is vouching. The bill eliminates the fail-safe.

Senator Baker: You use the word “fail-safe.” As I recall, in a B.C. court decision the evidence was that vouching was a fail-safe to somebody who didn't have the necessary documentation. Is that correct?

Mr. Mayrand: You're referring to the Henry case, I believe.

Senator Baker: Yes. Am I correct?

Mr. Mayrand: Yes.

Senator Baker: Under section 3 of the Charter, you cannot deny somebody's right to vote. If we are to take your word that you have reasonable grounds to suspect that on a balance of probabilities tens of thousands of people will not be eligible to vote who voted in the last election, then this bill violates section 3 of the Charter.

Mr. Mayrand: I think that's a matter for you to consider, as parliamentarians, as well as any matter brought before the court, which would have to determine whether it offends section 3.

Senator Baker: In a court case, you would be the respondent.

Mr. Mayrand: I'm going to be a party, but the Attorney General would be the respondent in defending the case.

Senator Baker: But you're now agreeing with the applicant, because you're saying yes.

Mr. Mayrand: No, my role before the courts is to advise the courts of the current provision of the legislation, how we interpret it and how we apply it, and to provide information that may assist the parties and the court in determining the issue at hand.

Senator Baker: Good answer.

Senator Frum: To continue with that vein of questioning, you've taken the position of 120,000 estimated vouchers — we don't know, as that's from Neufeld's report. It could be less or it could be more; we don't know.

Mr. Mayrand: There was a methodology applied, but it's based on 1,000 poll books being open from a cross-section of representative ridings and polling stations across the country.

Senator Frum: By asserting that those approximately 120,000 people will be disenfranchised, it means you know that they have no other form of ID. Can you say with certainty that you know that they don't have ID, that you know the reason why they were vouched for?

Mr. Mayrand: I can think of a few examples. Most probably the easiest one is seniors living in long-term care facilities. Often they don't have documents.

Senator Frum: But on that point and to the 29 cases by one nurse, that's inappropriate, but the administrator of that long-term facility can write a letter of attestation that they live there, and that solves their problem?

Mr. Mayrand: Yes. That leaves it to the good will of the administrators. In some cases, unfortunately, for very good reason, they have refused to provide those letters of attestation. There's no obligation for them to provide that. So we rely on their good will and try to negotiate a way of making it happen, but in some cases, for all sorts of good reasons, it is not possible.

Senator Frum: Moving to a different subject, your concerns about proposed section 18 removing your ability to participate in the future in “get out the vote” initiatives, do you not see why there is a conflict of interest between you as a chief electoral administrator being in charge of the administration of free and fair elections and also you being invested in “get out the vote” initiatives so that you have a vested interest in seeing the numbers increase and that balance between you needing to see that things are free and fair and you as a motivator to make sure that voting increases? You don't see the conflict there?

Mr. Mayrand: I wouldn't say that we're involved in getting the vote out. That's not what we're doing. We don't do any of those activities during an election.

In between elections, we work with educators across the country and with various groups. We provide tools in schools to help provide the civic education for young Canadians. Generally, those initiatives have been very well received by teachers, by schools, by parents and by kids. There's even some data that suggests those kids that went through that civic education are 14 per cent more likely to vote if they have gone through a proper civic education.

Senator Frum: I agree with you that civic education is important. I am just questioning whether or not it is properly housed with Elections Canada.

Mr. Mayrand: My point here is that it should happen. I think it is essential that we inform future electors regarding their role in society and community and the importance of voting. If it's done by others, I'm fine. I think it is something that requires a concerted effort of the whole civil society.

Senator Frum: You have said that the measures in proposed section 18 will limit your ability to properly administer free and fair elections.

Mr. Mayrand: Yes.

Senator Frum: Can you really extrapolate that we will not have free and fair elections if you can't do those civic —

Mr. Mayrand: My concern is the way the new section 18 is written. It is written in a restrictive matter. The operative word in that section is “only”: can “only” communicate with the public with how and where to vote and register or be a candidate.

During an election, all sorts of incidents happen where it is important to reassure Canadians that something is wrong or something is fair. If nobody can speak out to those issues during an election, I think Canadians may become quite concerned about what is going on.

I will give you an example. I assume you followed the Quebec election recently. There was quite a dispute regarding potential non-residents trying to register and vote in that election. That's what we do. Within 24 hours, we look at all the data available and we're able to satisfy or reassure the public that there was nothing amiss. That's the sort of thing an electoral body has to have the ability to do. Otherwise, confidence —

Senator Frum: Why do you think that particular example would no longer be allowed?

Mr. Mayrand: I cannot communicate on anything except where and how to vote.

Senator Frum: And who can vote. You can communicate on who can vote.

Mr. Mayrand: I'm not sure that's what it says.

Senator Frum: It is, but okay.

 [Translation]

Senator Joyal: I would like to come back to the issue of vouching. I will read what you said in March, on page 4 of your statement to the House of Commons. I’m not sure if you have it.

Mr. Mayrand: I do not have it in front of me.

Senator Joyal: I will read the second last paragraph of page 4, and I quote:

 [English]

It has been pointed out that vouching is a complex procedure and that numerous procedural irregularities were found to have been committed at the last general election in connection with vouching. It is critical to understand that, as recognized by the Supreme Court of Canada, the vast majority of these were strictly record-keeping errors by poll workers documenting the vouching process, and not fraud or even irregularities that could compromise an election. There is no evidence tying these errors to ineligible electors being allowed to vote.

 [Translation]

I have a concern about the bill. I completely agree with having ID requirements at the polling station. However, if those requirements cannot be met, then there is an alternative, a safety net called vouching, having a person vouch for the identity of someone else. In some provinces, people take an oath.

Couldn’t this safety net be improved instead of simply scrapped for purely administrative reasons that do not jeopardize the results of the election, as the Supreme Court stated in Opitz v. Wrzesnewskyj in 2012? Shouldn’t we be trying to fix the administrative errors we are finding in the vouching system instead of just getting rid of it and basically preventing thousands of people from being able to vote, for all sorts of reasons?

Mr. Mayrand: There are indeed a number of solutions. We must always keep in mind that the main problem has to do with proof of address; proving identity is rarely a problem. The problem people run into is proving their current address.

One avenue proposed by Neufeld for reducing the use of this alternative was to allow the use of the VIC for proof of address. In other jurisdictions — in British Columbia and Saskatchewan, for example — that is what they do when voters do not have ID or proof of address. They accept the equivalent of the VIC in those jurisdictions. There are other solutions.

I think that a solution proposed by my predecessor, is that in addition…

Senator Joyal: Neufeld proposed that?

Mr. Mayrand: Yes. It was in the Neufeld report. That is the practice in British Columbia and Saskatchewan. Another solution that was proposed by my predecessor during his testimony to the House of Commons was to require the voucher and the voter to sign a statement. Other foreign jurisdictions also sometimes use what are called provisional ballots. Those ballots are put in abeyance until after the election when officials can verify the address and identity of those voters and whether or not they voted elsewhere. That is another solution.

My point is that requiring proof of address is unusual in electoral systems. That is true for Canada. Only four jurisdictions require it, and that is true when we look at foreign countries. The United States — often we use the United States as a basis of comparison — has identification requirements. To my knowledge, there is only one state in the United States that requires proof of address and that is the State of Arizona.

Requiring documentary proof of address is a requirement that remains quite rare in electoral systems because it is hard for many voters to prove their current address at election time.

Senator Joyal: What I gather from your presentation is that the vouching system is not an endemic cause of voter fraud, but there is nothing to prove it?

Mr. Mayrand: No, there is nothing to prove it.

Senator Joyal: There may have been one case, but it is not systematic throughout the system in every region of Canada and cannot be perceived by fraudsters as the key to changing the result of election, for example?

Mr. Mayrand: It is a rather complicated way to defraud the system. There are other requirements for vouching. A person can vouch for only one voter. Both voters have to be registered at the same polling station. It starts to get rather complicated to use vouching for high-level defrauding.

 [English]

Senator Batters: I'm from Saskatchewan. I noted your testimony before the House of Commons PROC committee, and you made a comment that “First nations electors on reserve also face challenges, as the Indian status card does not include address information.” But I would say that there is a safety valve for that sort of a situation in that we allow, as one of the 39 pieces of identification, Attestation of Residence issued by the responsible authority of a First Nations band or reserve.

I also put to you that there are a number of other safety valves, as you put it, dealing with those similar types of attestation forms, which would be issued by the responsible authority of a shelter, soup kitchen, student or senior residence, or a long-term care facility. So any of those types of identification could be used in situations where many of those particular groups often do have trouble finding the regular forms of ID. Those are a number of safety valves. Would you agree with the use of that term?

Mr. Mayrand: In fact, I introduced the authorization, attestation into that list in 2007, recognizing it was a problem for many electors.

The problem we have seen in administering it is that not all authorities are cooperating in providing those attestations. It puts the elector, if you want, at the mercy or upon the good will of whoever is the administrator.

Senator Batters: True.

Mr. Mayrand: In some cases, they're very busy. In some cases, they have thousands of people to attest to, so it is difficult to get cooperation in too many instances to rely exclusively on that provision.

Senator Batters: From my past election experience, sir, I would say that it is a very widespread practice where those types of attestation forms are commonly issued. Would you agree with that?

Mr. Mayrand: They are often issued, yes, but universally, no.

Senator Batters: Commonly, though, in a widespread practice.

Mr. Mayrand: Yes, but again it is an individual right at the end of the day.

Senator Batters: You also spoke at the House of Commons PROC committee — and you expressed it today — that, in your view, the main challenge in democracy in Canada today is voter participation. Today you spoke about the main challenge being a decline in voter participation. You spoke today about the youth vote being something that was alarming.

An Elections Canada report investigated youth participation rates in the 2011 general election. In that particular report, youth non-voters expressed that not knowing where, when or how to vote played a role in their decision not to vote. “Not knowing where” played a role in 25 per cent of cases; “when” in 26 per cent of cases; or “how” in 19 per cent of cases.

What would you say to the fact that it seems to me your main priority should be helping people?

Mr. Mayrand: There are two things. I would point out that 46 per cent also said that the lack of contact with political parties in Canada is a major factor for them not to participate. But that's in that list.

Senator Batters: Yes.

Mr. Mayrand: The second thing is that when you look at surveys, you have to go a bit beyond the top-of-mind responses. When we do regressive analysis on the results of their survey, and it is in that report, you would find two main factors that affect turnout. The first one is what I would call “baggers”: access baggers in not knowing where and when to vote, and motivational baggers. The study will also tell you that the most significant one by far is motivational.

To generate an interest in learning about how and where to vote, you first need to be motivated to participate in the process. If you are not, you are not likely to pay attention.

As I indicated earlier, most — in fact 98 per cent — of our efforts in terms of outreach is to inform electors about the requirements for voting and where and how they can cast their ballot, and the options they have in casting their ballot.

Senator Batters: Another aspect that you dealt with at the House of Commons PROC committee was your preference for the use of voter information cards. But you also indicated to that committee that there was up to a 10 per cent error rate on those cards. I personally have experienced that. Several years after my husband and I moved into our current home, we received five different voter identification cards in the mail. I believe there was one for him, one for me, one for me with my maiden name, and one for each of the previous owners of the house who hadn't lived there for several years. That is one example.

I am just asking for your confirmation. You testified before PROC that there are 23 million voters in Canada. Up to a 10 per cent error rate would be 2.3 million errors on voter information cards.

Mr. Mayrand: I think I testified also that after revisions and targeted revision, that rate of accuracy goes to 93 per cent; you are right, it is still 7 per cent.

Senator Batters: Out of millions of people, yes.

Mr. Mayrand: One of the things that may explain why you received so many things: You may have used different names depending on our sources. They could be drivers’ licences, income tax or other sources.

The other thing is that you will note that the card is sent to a name or whoever occupies a dwelling. In making the VIC available as a proof of address, we would have to change that part of the card to make sure that it only goes to actual occupants of the dwelling.

 [Translation]

Senator Boisvenu: Hello, Mr. Mayrand. I have two questions about your brief. The first concerns what you said on page 12, that the current commissioner and his predecessor have both indicated that their effectiveness depends on having direct and unfettered access to information and expertise within Elections Canada. They are also concerned that the transfer to the Office of the Director of Public Prosecutions would limit their ability.

To say “concerned that” in a brief means there is no substantiated evidence. Do you have any arguments that might convince us, because being concerned that — in your position, having been in the public service for as long as you have, I know that people are very much concerned about change. What are you officially concerned about?

Mr. Mayrand: The legislation, as you know, will separate administration from investigations. In doing so, the legislation does not provide any way for the two entities to communicate with each other in future, which effectively puts Elections Canada in the same position as any other complainant. That means that Elections Canada, as a public entity, a government agency, will be subject to the various laws that govern government agencies, including privacy laws and others that limit the exchange of information between government agencies.

In my opinion, that is a flaw in the bill. I would be forced to provide information when the commissioner asks for it and I should be free to provide the commissioner all the information he needs to conduct investigations.

Senator Boisvenu: If you think the mechanism is lacking, because we’re still speaking hypothetically, then why didn’t you include a proposal in your brief to establish such a mechanism?

Mr. Mayrand: It’s in the table I handed out. It’s one of the amendments.

Senator Boisvenu: You have concerns, but you are making a proposal based on the mechanisms?

Mr. Mayrand: Yes. You received a table of the different proposed amendments. It’s included in that table.

Mr. Boisvenu: My last question has to do with the percentage of votes. In your presentation, I’m not sure whether you did this intentionally or not, but you forgot to read a paragraph on page 4, the one on your voter information campaigns. The paragraph begins as follows:

At the same time, Elections Canada’s priority is to ensure that those who already want to vote have the necessary information to do so.

I found it a bit odd that you didn’t read that paragraph in your presentation.

Mr. Mayrand: I didn’t read it because I mentioned it later in my speech. It was also an issue of time.

Senator Boisvenu: My question concerns young people because the challenge is to increase youth voter turnout. Your student component, which is geared to young voters, represents barely 2% of your expenses. Isn’t it sort of contradictory to spend so little on a clientele that participates so little? I am trying to understand this contradiction.

Mr. Mayrand: Indeed. This is an expense that is incurred during an election. “Student Vote” is a parallel election that is held is some 3,500 schools across the country that coincides with the federal election, during which the candidates are even invited to present their positions at the schools.

Senator Boisvenu: What percentage, out of the $33 million, do you spend on communicating information to young people between 18 and 25?

You said that the challenge is to increase the voter participation of young people between 18 and 25. What percentage of your budget do you spend strictly on that age group? In Quebec, during the last election, the commissioner of elections really focused on that age group and people say that it produced results.

My question is the following: what percentage of your budget is devoted to that age group?

Mr. Mayrand: I do not know the number off the top of my head, but I could get it for you. We are indeed making targeted efforts with young people. For example, we have community officers on all the major campuses across the country who connect with students and campus administration to inform them on the ways they can vote or register, and various solutions; where, when and how to vote.

 [English]

Senator Moore: Thank you, witnesses, for being here. I want to follow up on that questioning, Mr. Mayrand.

Student Vote costs less than $800,000. You do this work to encourage and to inform the students, the young adults, about their right to vote and the importance of it. Do you do that between elections or is it only at election time?

Mr. Mayrand: No, we do work with schools and teachers across the country between elections.

Senator Moore: You do.

Mr. Mayrand: For example, in collaboration with Elections Ontario, we developed a curriculum on civic education that was distributed in all schools in Ontario. It has been well received by teachers and students alike.

Senator Moore: You talked about the approximately 120,000 voters who would miss out on the opportunity to vote because of the removal of the vouching system. Do you have any idea of what makes up that aggregate, whether there are First Nations people, street people, veterans among the street people?

Mr. Mayrand: Honestly, we do not because we don't keep information on electors other than if they have voted — that's in the poll book — who was vouched.

As to what were their particular circumstances, we don't know about that, necessarily. What we can tell from what we have looked at is that it is often relatives. So, it is people living in the same dwelling, a mother and adult children that would be vouching for one another. It is also where seniors live with their children, and children would vouch for their mother, father or other relative. That's the majority of cases.

We don't have an exact profile. We know it is an issue on Aboriginal reserves, in seniors’ homes, and it is an issue also for students.

Senator Moore: You have made some very good recommendations and acknowledged the issues facing the election process in Canada. What involvement did you have at the request of government officials, or otherwise, in connection with the preparation of this bill?

Mr. Mayrand: My involvement has been through the production of various reports since 2010. At least three were produced and tabled in Parliament. Other than that, we have had no involvement in developing the current legislation.

Senator Moore: When this bill was prepared, you had done reports in the past.

Mr. Mayrand: Yes.

Senator Moore: Nobody came and said, “Look, you have done a lot of work on this, what do you think? Are we headed in the right way? Are we opening up for more Canadians or are we going to be suppressing?” Did anybody ask about that?

Mr. Mayrand: I have never been asked about the vouching, phenomenon of vouching, how it was an issue, what the alternatives would be or anything of that nature.

Senator Moore: The thing that bothers me about this whole operation is the matter of robo-calls. When I think of people being directed to the wrong places to vote — Canadians — we have men and women who fought and died, and they're buried in other countries to protect democracy, to protect this right to vote and now we're suppressing it. Why do we have that? Why do we permit that? Why don't we get rid of that? It is repugnant to our whole system.

Mr. Mayrand: There are some provisions in the bill that seek to deal with events like robo-calls. I think there are some improvements that are brought into the bill.

I pointed out there's still room for further improvement. There are a few issues that I see with the regime that is being proposed, but again, as I indicated, to me it is in the range of provisions that are good but could be made better through discussions.

Senator Moore: You mentioned some of those.

I have one more question, chair.

The Chair: I'm afraid you don't have time for one more question.

Senator Moore: I don't?

The Chair: No, you don't.

Senator McInnis: Thank you for coming. There are several points in your brief that I wanted to touch on. I will try to do it quickly.

Voter decline is a real problem. It's a real challenge. The motivation you have alluded to or mentioned directly, I don't know how you change it. There's a lot of frustration, comments that are all the same. I think it is probably because there have been too many Liberal governments in this country that have turned people off. It is a challenge.

But in sincerity, you haven't accomplished perhaps what you set out to do because it is a major challenge to get the vote out. So I agree with what this bill is doing with respect to that.

I just want to touch on this: You mentioned that the commissioner will not have the tools to carry out his job. And you mentioned as well that — I don't think I saw it in here directly that you — removing the commissioner out of your office is incorrect. You will be correct me if I'm wrong on that, but that's what I take. And other comments with respect to witnesses that cannot be compelled to testify, it displays — and please, I'm not being arrogant or smug and I'm not taking a shot — to me that you do not have an understanding of how the justice system operates with respect to independent public prosecution in directors.

I am amazed that in 2014 we would have the management of elections in this country, and regulation and enforcement, in the same office. That is appalling.

In fact, this is an excellent move and I'm amazed that it has not been made prior to this time. Other comments that have been in the media are that it is quite shocking and quite surprising.

Compelling witnesses to testify after the investigation is done will be done by the Director of Public Prosecutions or those who work under him. With respect to investigations, the commissioner will now be charged with the responsibility of hiring the staff and will hire more staff to conduct investigations.

I have one other comment. With respect to communications, I rather suspect that during an election, if there's something untoward, the commissioner will comment, if necessary, and if it's not in breach of any pending charges.

That's what's troubling to me. There seems to be this misunderstanding of the responsibility of our true justice system in separating out, as has not only been fashionable across the country but has been almost mandatory and, as I said earlier today, with royal commissions where millions of dollars have been spent to determine these things well back in the 1980s.

Mr. Mayrand: You raised several points. I'll try to touch briefly on a few.

What's unusual is merging investigation with prosecution. The tradition in Canada is to keep investigation and prosecution separate. In fact, I'm not aware that the DPP has any other responsibility regarding investigation than the one that has been given by this piece of legislation. That's one thing.

The other thing is that it is common, both at the federal and provincial levels, to combine within the regulatory agency responsibility for investigation and administration. You can think of CRA, the environmental department and a plethora of agencies that combine those two functions.

I'm not sure. In terms of resources, there's nothing in the act that adds or subtracts resources.

In terms of the history, again, what was done in 2006 was to separate, because it was unusual to have a combination of administration, investigation and prosecution. That was unusual, and that was fixed in 2006 by moving prosecution away from the Commissioner of Elections Canada. It seems to me we're going in a circle here. We're now saying, six years later, that we need to bring investigation with prosecution again. I leave that to the committee to decide.

The Chair: I'm afraid we have exhausted our time. We have other witnesses scheduled. I understand Mr. Côté will be appearing before us, so we’ll have an opportunity to pursue that issue further. Gentlemen, thank you.

For our second panel this afternoon, appearing as an individual, certainly an individual who knows a lot about the subject matter covered by Bill C-23, we have Jean-Pierre Kingsley, former Chief Electoral Officer of Canada.

Welcome, sir. It's good to have you here. I'll give the floor to you for an opening statement.

 [Translation]

Jean-Pierre Kingsley, former Chief Electoral Officer of Canada, As an Individual: Honourable senators, I appreciate the invitation to appear before your committee to comment on Bill C-23, which is a very long and complex bill.

The last time I was here — a few weeks before I left the position of Chief Electoral Officer in February 2007 — Senator Joyal said that he would like me to return.

My presentation will only take three minutes.

With your permission, I would like to reread my submission to the members of the Standing Committee on Rules, Procedure and Rights of Parliament in the other place.

The clerk and I agreed that it would suffice to give you a copy of my presentation and that I would review the key points.

 [English]

In my presentation, which is before you, I highlighted what I consider positive elements in the bill concerning robo-calls, the registration of service providers and the retention of records; the significant increase in fines to $50,000 and $100,000, depending upon the infraction; the graduated and significant reduction in the reimbursement of campaign expenditures in cases of overspending of the limit; the fourth day of advance polls, and the Quebec election has just demonstrated the popularity of that; the reformed schemes for loans and unpaid claims; the legalization of the advisory committee of political parties; and the requirement for statutory interpretations and advance rulings by the Chief Electoral Officer. Those were the positive elements.

 [Translation]

I believe that two changes are relatively neutral in their effect. The first is moving the Commissioner to the Office of the Director of Public Prosecutions. In that case, he should still be given the right to speak to the public, and the onus of being required to notify a person who is the subject of an investigation should be reversed. Second, I also consider the five per cent increase in spending limits and the twenty-five per cent increase in contributions to be neutral as well.

I have also pointed out certain improvements to be considered. First, withdraw the proposed exemption from party expenses of the cost of fundraising from party donors.

Vest in the law the CEOC’s right to have access to all documentation pertaining to party reports on annual and election expenses. I also mentioned that the Commissioner of Canada Elections must have the authority to compel witnesses pursuant to a court order.

 [English]

Two changes that I consider essential were broached: the retention of the vouching process with the addition of obtaining written oaths, something that the bill does not foresee at this time, and the repeal of section 18 of the bill to restore the Chief Electoral Officer's right to speak to Canadians and to reach out to disadvantaged electors, including youth, minority groups and new Canadians.

The confidence of Canadians in their electoral system must be maintained once this bill is passed, hence its very legitimacy. Thank you.

The Chair: Thank you, sir. We appreciate the brevity of your opening statement because members are anxious to ask questions, and we'll begin those questions with the deputy chair of the committee, Senator Baker.

Senator Baker: Welcome to the witness here today, who is certainly an expert on the Canada Elections Act. I would first direct his attention and seek his expansion of a statement that he has given to this committee. The statement says as follows:

First there is Bill C-23's proposed abolition of the legal provision whereby one elector can prove his or her identity through vouching by another elector. This will directly affect the constitutional right to vote of a significant number of Canadians without justification.

Mr. Kingsley, the “without justification” is important because, as section 1 of the Canadian Charter of Rights and Freedoms says, you get to a point where a court says: “Okay, this violates the Charter, but is it saved by section 1? Is it justified in a free and democratic society?”

You've said here it is not and that it is absolutely unconstitutional because it will deny a right to vote for a significant number of Canadians. Could you identify the numbers of Canadians involved and verify that you are concluding that it will not be saved by section 1 of the Charter?

Mr. Kingsley: When I made the comment, obviously I was keeping in mind the report that identified approximately 120,000 persons who were vouched for during the last general election. The report that was produced reported so many administrative irregularities where a lot of documentation was not prepared. I recommended two things in my remarks to handle this matter. The first one was get people to do their job: the deputy returning officers, the clerks and the people who receive people to be vouched.

One must understand what the process is here. I'm not talking about how you vouch. There are 20 people in line. They're all waiting to vote. One of them shows up with someone else and says, “I don't have my ID, but my brother is here; he'll vouch for me.” “Where are you? What's your name?” Check the name, the names are there and the addresses are there. Okay, you vote. “I haven't got time to fill out forms.”

Now, in 2006, you'll forgive me for doing this, but I told the two committees: You need additional staff for this. I recommended one additional person. The bingo cards were being introduced at the same time. That burden was put on the deputy returning office and the clerk, with no additional staff. There were the same number of electors all lined up. Therefore we created a situation whereby these people have to move. The line has to move.

Canadians don't like to wait in line for a long time. I got phone calls if they waited more than half an hour. They would call me up and be very upset. “What kind of system do you run?” I didn't want to send them to vote in the States, where it's five hours. I said, “Maybe we should fix the problem here.” The first solution is getting the people to do their job. Now the Chief Electoral Officer through this bill will have the opportunity to appoint additional staff.

The second one is the bill proposes in two cases where there's other forms of oath-taking. This used to be verbal, but there was a document prepared by the electoral authorities. The bill proposes that now the oaths be in writing as well, and not just the documentation concerning it, signed by the person taking the oath. There are two oaths that are taken when there's vouching: the person doing the vouching and the person being vouched for. The two of them should signs oaths and that will solve the problem in one fell swoop. With those two measures together, you have yourself a solution to the vouching problem.

I want to add one further thing. I know I'm taking up your time.

People forget that we have a system that was based on trust of electors until 2006. Then we changed the whole mentality and said that this is no longer good through the Accountability Act. We said, “You need proof of address from now on, and not only that, you're going to need proof of identity; we want both.”

There's no federal authority that produces a document that's readily available with those two pieces of data on it. It's a form of inequity. I relate that in my remarks as well.

Senator Baker: You're saying that the only piece of documentation would be a driver's licence, but there's no federally issued piece of ID that contains a picture of somebody with their current address on it that you can rely on.

In other words, you're saying that the vouching, as you probably are aware, in some court proceedings referenced in the previous hearing, Henry v. the Chief Electoral Officer of Canada — are you aware of that decision?

Mr. Kingsley: The B.C. court.

Senator Baker: Yes. The Government of Canada based its logic on and said that the Canada Elections Act was a legal document and requiring people to produce identification because the Government of Canada said, “We have the fail-safe of vouching.” That was their position.

Now, you have said that doing away with vouching will take away a significant number of Canadians' right to vote. Are you in agreement that the next court proceeding if this passes as such, it is entirely likely that a superior court in this country will strike down this provision in the Canada Elections Act that we would be instituting if this is approved?

Mr. Kingsley: It's difficult for me to pass judgment on what a court will do, to be honest with you. Frankly, any question preceded by “if” I will be very careful about. I want the whole committee to know that.

I don't know how a court would decide on a matter like this. What I do know is that a court would have to take into account there are Canadians who walk around without pieces of ID and address, especially pieces of proof of address. There are Canadians in rural Canada, in remote Canada, who live their lives as Canadians without all this paraphernalia that fattens my wallet.

Senator Frum: Thank you for being here.

Senator Baker just mentioned that there is no federal piece of ID that has your picture on it and also your address. Can we make it clear you do not require picture ID to vote? Is that correct?

Mr. Kingsley: I'm not sure.

Senator Frum: You don't.

Mr. Kingsley: I will accept that. I never ran the system with ID. I was very happy about that, by the way.

Senator Frum: Fair enough. I didn't really mean to put you on the spot, although this actually speaks to Senator Baker's impression you need picture ID and you're not sure.

Senator Baker: That's what he said.

Mr. Kingsley: No, I did not say that.

Senator Frum: No, and I heard you scrum with the media outside and say you need —

Senator Baker: You said there was no federally issued piece of ID with your picture and current address on it.

The Chair: Senator Frum has the floor.

Senator Baker: Go ahead.

Mr. Kingsley: If I said that, I take it back.

Senator Frum: I think what we've just established is that Elections Canada needs to do a better job of informing electors, including Senator Baker, about what ID is actually required.

I have one question on vouching. Vouching has been described as a safeguard. What is the safeguard on vouching? In other words, we know about the compliance from the Neufeld report that was a compliance report, and that's when we found out that up to a third of vouched ballots had serious irregularities. We found out through a compliance report. Is there a process after an election of verifying the vouching? How do we know if people are telling the truth?

Mr. Kingsley: If you were to implement the recommendation that the oath be in writing, then you will have the voucher, who is already on the list for that poll, with the address —

Senator Frum: Not necessarily.

Mr. Kingsley: Oh, yes. He has to be at the same poll as the person for whom he's vouching. We're talking about 350 electors at the most. There are only 350 electors at each poll, and they have to be from the same poll. You would have that document. He or she is saying, “I know this person, and I know where he or she resides.”

Senator Frum: Okay, sorry; pardon me. The person being vouched for doesn't have to be on the list.

Mr. Kingsley: All that would be in writing on those two forms, and the two of them would sign that oath, saying, “I'm this guy and she's that woman.”

Senator Frum: I understand. Then what happens? What if she's not that woman? How do we know?

Mr. Kingsley: You have scrutineers.

Senator Frum: How will they know?

Mr. Kingsley: We can verify, after the fact, whether there are people living there.

Senator Frum: Do we?

Mr. Kingsley: I don't know if we do. I never ran a system that had that, but it's something that could be easily implemented.

Senator Frum: It seems that we don't do it. It only came to light through the Neufeld report. It's not written into the process that part of vouching requires follow-up and compliance.

Mr. Kingsley: If you wish to put that into the law, that's something that you can consider. If it's something that you think the Chief Electoral Officer should do, bring the Chief Electoral Officer here and tell him you want that done. This is what Parliament exists for.

Senator Frum: Sure, but we can agree that, as it stands now, vouching is, therefore, very open to fraud because we don't do any follow-up verification in the current system, it would appear.

On your list, you listed that you're neutral on the spending limit increase. I guess neutral is good. Can you give us some context for personal contributions to elections by Canadians in terms of international norms? The number is going to go up to $1,500 per person. How does that fit into the world context?

Mr. Kingsley: We're the best.

Senator Frum: Meaning?

Mr. Kingsley: We are about the one jurisdiction that truly controls money in the political process, in the electoral process. Obviously, we could do better in terms of the auditing of party books, but that's another issue.

In terms of the control of money, the fact that only a human being who is a Canadian can give; the fact that that is an amount by which one cannot say that a politician can be swayed or a political party can be swayed; that no corporation can give; that no union can give; that no association can give, not even the Boy Scouts of Canada, means that this is a tremendous system. There's the fact that we've allowed third parties to exist. They could be the Boy Scouts of Canada or they could be Imperial Oil of Canada. There are restrictions on what they can do in terms of money as well. We have one of the best systems. I hesitate to say the best because we're humble by nature, but I think we're the best.

Senator Frum: Thank you for that.

I have one last question. Do you have any issues at all with the provision in this bill that would allow fundraising costs to be deducted from campaign spending limits? Do you have any thoughts on that?

Mr. Kingsley: In my testimony — you may not have had a chance to review it — I say that that's impractical because of the fact that you cannot go out picking up money without touting yourself or blasting the other person. What can you say to someone? You've given to us before? You don't even have the name of the party on the sheet because the moment you do that, that's called advertising in our system. You put out your placard with your picture — and we do have pictures on placards — and the name of the party, and that's called advertising. It's sitting there. If you send out a letter that has the logo of the party and “Give again,” that's advertising. So you cannot divorce the two unless you send a blank letter that says, “Give again,” and there's no name on it. Who will they give to? It's impractical. It's not feasible.

The minister said it's very little. If it's so very little, then why bother creating this loophole? I've always been concerned about what happens in loopholes. We get Brinks trucks and Garda trucks being driven through them. There's no report on this; this is the other thing. We wouldn't know how much of this is happening. We wouldn't know what's happening over time. Is it that small crack that's widening and will let the tide in? That's the issue I have with this.

Senator Frum: Sort of like vouching. Okay, I've got it; thank you.

Senator Moore: Thank you, Mr. Kingsley, for being here.

I wanted to ask you about robo-calls. I understand that this bill requires the CRTC to keep records for a period of time; I think it's a year. Is that correct? What are the records that they have to keep?

Mr. Kingsley: I think the CRTC has said in an explanation before the PROC, the committee in the other place —

Senator Moore: You'd better explain what the PROC is because people watching or listening to this don't know what that is.

Mr. Kingsley: PROC is the Standing Committee on Procedure and House Affairs in the House of Commons, the place before which I've appeared more than anybody else on the face of the Earth so far.

The CRTC has said that they would retain records for seven years. The issue is there should be congruity between how long they will keep the records and how long the commissioner can open an investigation that could lead to a prosecution. I don't know what that is. It may be 10 years. It may be forever based on one change I've seen to the statute.

But the real issue is that the texts of the messages would only be kept for one year because the minister is explaining that he doesn't want people who are not really engaged too much in the game to do that. I'm saying that one year is fantastic. Then what they should do is flip that over to Elections Canada for safekeeping because that may be very helpful in terms of an ongoing investigation. There is no way that all of the investigations flowing from an election can take place within a year. You would need access to these documents, and it would be very simple to say to the people who have those records, “Flip them over to the Chief Electoral Officer or to the CRTC, for that matter; I don't care.”

Senator Moore: Do the records contain the telephone number of the person contacted?

Mr. Kingsley: No, they do not, at this stage, and that's one of the things I suggest should be done as well, in accordance with Mr. Mayrand, because that will help the investigators a lot to trace what has been happening here. !!!

Senator Moore: Clause 158(4): “. . . into force on the day on which Parliament is next dissolved . . . .” I've read this a couple of times, and I don't understand it. Maybe you can help me.

Clause 4 of the bill is powers and duties of the CEO; 76 deals with voter contact calling services and 137 and 144 with the Telecommunications Act. All of that comes “into force on the day on which Parliament is next dissolved, or, if that day occurs less than six months after the day on which this act receives royal assent, those sections come into force six months after the day on which Parliament is next dissolved.” What does that mean?

Mr. Kingsley: Sir, I used to retain lawyers to help me understand stuff like that as well. I'm not one of those. I do not know that. I cannot help you at all.

Senator Moore: You can't help us at all?

Mr. Kingsley: Not at all.

Senator Moore: Did you look at that section?

Mr. Kingsley: It was too long to look at. No, I did not look at that in detail. I gleaned over that one because I know it's too convoluted for me.

Senator Moore: Too convoluted.

Mr. Kingsley: Yes, for me.

Senator Moore: It sounds like it's pretty important, coming-into-force day.

Mr. Kingsley: Yes.

Senator Moore: If it's a little convoluted for you, given the positions you've held, how will this work for Joe Citizen?

Mr. Kingsley: I'm sure there's a common interpretation of that that can be obtained from the people at the Privy Council Office who prepared this legal text. I'm sure there will be witnesses here at some moment in time. I would take my hat off to them at any time on this.

Senator Plett: Thank you, Mr. Kingsley, for being here. We're spending an awful lot of time on vouching, and there are many other parts of the bill. Senator Frum has alluded to a few of them very well in some of the questions she has asked, but I'll spend a little more time on vouching because that seems to be the issue that everybody is focusing on. It seems to me that, when the opposition doesn't have proper arguments, they say it's unconstitutional. That's the easiest way to argue any bill that has come before us. We will have, later on today, a lawyer who will, I think, say that it is constitutional, so I'm looking forward to that.

Do you have any idea, sir, how many people needed vouching in the last election because they forgot their ID as opposed to not having proper ID?

Mr. Kingsley: I do not know that, sir. I did not study that phenomenon at all.

Senator Plett: I appreciate that. Maybe there are no records.

Mr. Kingsley: The whole point is there are no records; that’s what is missing.

Senator Plett: There are records about the irregularities in that there were 50 some thousand that pertained to vouching.

Mr. Kingsley: Right.

Senator Plett: I'm not sure whether they know this, but nevertheless, I may ask that of others yet.

In your testimony a few minutes ago you talked about walking around without ID that has your address on it.

Mr. Kingsley: Yes.

Senator Plett: I walk around without ID that has my address on it many times. Before I asked the question, I went through my little clip to see if I had something with an address, and I notice I had my driver's licence in there.

However, we don't just walk around and walk into a polling station. We go there for a purpose. We leave home for the purpose of voting, so it is not just walking around. So if I knew what kind of identification I needed, I would maybe bring it with me as opposed to leaving it at home. I guess that is why I asked the question about how many people do this by accident. I would think most people would take the ID required of them and, as the minister explained earlier today with the attestation, which in my opinion is a form of vouching, if I am the manager of a home care facility and the seniors there don't have the ID required, I can attest that they live at that particular place. That would still be a form of vouching, would it not?

Mr. Kingsley: Well, I was at the back of the room when Mr. Mayrand was explaining — I think it was to Senator Frum — how that is a good idea, but getting people to act voluntarily on that front is problematic. If you would have put in the bill that they must provide those letters of attestation and not to do so would create an infraction, then that might become an alternative. Some people are just not willing to provide that, and in some cases, it is also very expensive for them.

Senator Plett: I appreciate that. I don't want to make light of the fact that we need to make sure that every individual in the country has their constitutional right to vote. But I would suspect that that number, when we talk about the 120,000 that needed vouching in the last election, would be considerably less.

My last question is this. I hate ever taking my information from the media, but I read in a newspaper article that you gave this bill an A-minus when it first came out. I'm wondering whether that grade has changed any since you first read it, and if so, were you a little quick to jump to an A-minus? Why the A-minus then and maybe something else now, if there is something else now?

Mr. Kingsley: There is nothing else now.

Senator Plett: So it is still A-minus?

Mr. Kingsley: There is nothing else now. I'm waiting to see the changes to the bill through the various committees that will be brought forth. I have agreed with the media, some of whom are here, that once the bill is finalized and up for reading, I will read it again.

In the meantime, there's no point in rereading. Every time there's an iteration by somebody asking, “Are you still at A-minus or are you looking at B-minus-minus,” it is not helpful to the discussion. There are important points being made, and I don't want to take away from the various people by determining, as a teacher, I'm now at B-plus-minus. It doesn't work that way.

Senator Plett: Throughout my life, I'm usually happy with a B-plus.

Senator Batters: I was always happy with an A-minus as a midterm grade.

Senator Plett: I preferred A-plus myself.

Senator Batters: True, but A-minus is pretty good. I appreciate the fact that you shortened your opening statement to conform to the time we have available today. There were some parts of your statement that you handed out in writing, which you didn't have much time to get into. I can certainly see from the number of points you made listing positive elements of the bill, and then there were a few neutral ones and a few areas of improvement, how you came to that assessment.

The one I wanted to talk about was the Director of Public Prosecutions issue. My past experience was as the Saskatchewan Justice Minister's Chief of Staff, and in that capacity, although the Director of Public Prosecutions for Saskatchewan technically reports to the Minister of Justice, independence for that office is vital and it is a very well-respected tenet of that office from the minister's office. I see that as directly translating to this situation here, and I'm just wondering how you would comment on that.

Mr. Kingsley: Well, I read that section of the bill quite thoroughly, and I've put that in the neutral category.

Senator Batters: Yes.

Mr. Kingsley: There were several relatively small concerns I raised, and I will raise them again. The independence of the Director of Public Prosecutions exists under our system, even though theoretically and in reality he or she must meet — it is now a he — with the Attorney General because that is what’s required.

What is not known, and I have not heard it anywhere else, is that whenever there is an infraction under the Canada Elections Act, the Director of Public Prosecutions cannot discuss that with the Attorney General. That is an exception that was made, which was obtained when I testified before various committees when we were dealing with the Accountability Act.

Even if it were not for that, we still trust the DPP, the Director of Public Prosecutions, if it is a criminal infraction perpetrated by a political party or a politician of any ilk — but not under the Canada Elections Act — we still have faith that he will go ahead and prosecute this in fairness. That has never been an issue. The process by which we choose the DPP is a very thorough one, so that is why I am satisfied.

We heard the Chief Electoral Officer talk about the need to set up mechanisms so there can be discussion. I would say that one thing we should consider is giving the commissioner the right to speak during an election about certain inquiries when it is in the public interest that he do so. Right now, he is prevented under this bill. I know how reluctant people and politicians are to see someone who is in charge of investigations report that an investigation is going on in this particular case, not only during an election, but it is worse when it is about an election. That's why, when I was there, we always adopted the policy — which I think is still there; I'm sure it's there — that we don't comment on the investigation.

Sometimes, we simply cannot say to a commissioner, “You can never talk to the people,” because he or she may uncover — I think you alluded to this a short while back. He or she may come across something that is in the public interest and that should be made public. These are things that happen during an election in this country. This is what I meant in my statement when I said the trust of Canadians must be maintained. They must know that the people running the system are able to talk to them when something wrong happens. We don't know what that would be.

Senator McInnis: Part of the problem with that is you are in this until proven guilty. What happens is there's a candidate out there running, he thinks he didn't do anything wrong, and all of a sudden there's a headline covered across the country that this person has done something that we believe is incorrect.

What happens is the commissioner who does the investigation will turn it over to the Director of Public Prosecutions and they will make that determination. If you do it the other way — and, trust me, when it hits the media, you’re guilty and you’ve got to run a campaign. That's the problem. That's why I agree with the way the legislation is now.

I want to get on to some other things. I don't have anything too heavy here. I appreciate your remarks and thank you for coming.

The matter of vouching, which I think is constitutional, is a problem; there's no doubt about that. The funny thing about change and people adopting change is that it takes time. Just as when you go to vote, you have to provide information when you exit the country; you have to provide information to get a health card; you have to provide information for everything.

Education and practical experience will bring this around. I leave that with you because I do believe that it is a matter of practice. Goodness knows there's enough advertising in election campaigns if a person doesn't know that the election is on such and such a day, trust me, I don't know where they have been.

I'm not sure if I understood what you said with respect to fund-raising expenses, but elections are extremely costly. My experience with those who run elections and run fund-raising campaigns, and so on, has been to hold on to those records. Whether they're going back a second time, or whatever, they are extremely cautious about expenses. I happen to agree that this should not be an expense.

That's for what it is worth. You can comment, if you like.

Mr. Kingsley: I appreciate the expression of your views, sir.

The Chair: I have exhausted the list and we still have some more time. We have a visitor to the committee, Senator Ringuette. We will give you an opportunity.

Senator Ringuette: Thank you for being here. I just came back from a mission in Peru and because of this bill, which is of high importance to most Canadians, I inquired about their election system. The government there provides a picture ID free of charge to every citizen, and it has a chip. That brings us to the fact that if one party — and I'm not talking about a political party — or one entity wants or requires certain ID, then shouldn't that party also be responsible to provide it?

Mr. Kingsley: That is the position to which I was alluding when I said that there is not one federal authority that provides, in a readily available form, proof of ID and proof of address.

When you talk about Peru, in Mexico they provide you with an electoral card that has your name, your picture in holographic terms, your signature, a 12-character alpha numeric code, and your fingerprints on the card. If you don't bring that card to the polling station, you don't vote. But it is the electoral authority that has the responsibility. It is called the Padrón. They started it in 1992, put it in place in the election in 1994, and the Mexicans have been holding excellent elections since then.

Senator Ringuette: That brings me to what I was trying to make my colleagues understand, namely, that when you have a requirement, you also have to provide the mechanism for your citizens to meet that requirement. This act doesn't seem to provide it.

The intention of the bill might be right with regard to voters, but after that, an ID national mechanism for all citizens should be put in place. We have countries that have seen that light.

Mr. Kingsley: Right.

Senator Frum: It matters that we have a parliamentary system with representation by riding and by region. Unlike other systems, it matters where you live when you vote. You have to vote in the riding that you live in. That's why this problem of a national identity card doesn't solve our problem here in Canada.

Senator Ringuette: It has an address on it.

Senator Frum: You didn't say that.

Senator Ringuette: It has an address on it.

Senator Frum: You are then into the same difficulties of people who move. I'm not saying that I'm opposed to a national identity card, but I am saying that the significant feature and factor is not your photo, it is your address, in our form of parliamentary democracy.

Senator Ringuette: Then you're saying we're going backwards.

The Chair: Senator McCoy has attended today. Would you like to ask a question?

Senator McCoy: Thank you for the acknowledgment, chair, but no, I have no questions at this time.

Senator Baker: For clarification, Mr. Kingsley, you said in your prepared statement — not in your verbal statement — that “Bill C-23 would certainly provide longer reach and sharper teeth should the authority to compel testimony be granted to the Commissioner of Canada Elections.”

This is the authority that the Auditor General would have under the Public Inquiries Act to have the authority of a commissioner. This would be the same authority, as I understand it, that's held by several provincial jurisdictions in Canada, and it is probably, would you say, the reason why the commissioner has not been able to proceed adequately with investigations presently under way concerning the robo-call matter and other matters. Is that your point?

Mr. Kingsley: That is the point. The Chief Electoral Officer, not here but elsewhere, indicated — and I alluded to this in my remarks — people now know they don't have to talk to the investigators at Elections Canada and they may have pertinent information. It is not incriminating to them but just on the fact that they would have to be talking about friends or people, they refuse to do so. The authority can only be obtained through a court order — and I think this is the point that was missed in the earlier conversation — which is an exception to what the other federal regimes have; they don't require a court order.

Senator Baker: That's right.

Mr. Kingsley: Here it would provide a court order in the proposal that has been made. For that reason, we stand the chance of never knowing what really happened in robo-calls.

Senator Baker: Because of this?

Mr. Kingsley: Because of this.

Senator Baker: Because this requirement is not in the act.

Mr. Kingsley: If we had this, I'm 95 per cent certain we could get to the bottom of it.

Senator Baker: You are no longer the Chief Electoral Officer. Why wouldn't the government do it?

Mr. Kingsley: The explanation has been provided that the relationship is what a policeman has as an authority. That is what has been offered, sir.

 [Translation]

Senator Rivest: I have a general comment. From what I remember, before an electoral bill is introduced in Quebec’s National Assembly, efforts are made—and this is the practice in Quebec—to obtain a consensus among all political parties with the participation and the collaboration of the people at Élections Québec. Here we see that Parliament is stuck sparring over this bill.

In your experience, would it not have been more advantageous for the government to bring together Elections Canada officials and representatives from each party and to agree on improvements that could be made to a law instead of drafting a government bill?

Mr. Kingsley: We have heard from the Chief Electoral Officer of Canada and the minister and thus we have heard both sides of this story. Would the bill have been improved according to those who want it to be improved? I do not know. That would depend on the mindset of those who wanted to include certain measures in the bill. Would it have been advantageous? I do not know. I know that it was often the practice. However, when I was Chief Electoral Officer, bills were introduced without my office necessarily being involved in a very significant way. That was nothing new.

 [English]

The Chair: I think that wraps it up, Mr. Kingsley. Thank you very much. Do you have a final comment?

Mr. Kingsley: Concerning the suggestion made with respect to vouching, I made the recommendation that it be in writing. The idea is floating around that maybe there should be more knowledge and so on. Why don't we try both? Why don't we get the Chief Electoral Officer of Canada at the next election to mount a massive campaign about getting the pieces of ID together and then seeing how that reduces vouching? Don't eliminate it yet. Try that for one more election and then verify what happens. See how significantly you can reduce vouching by doing the type of thing that is being proposed instead of just eliminating it in one fell swoop. That’s just a suggestion for you.

The Chair: Thank you for that suggestion. We appreciate your contribution to our deliberations.

Mr. Kingsley: My pleasure.

The Chair: Our next witness is appearing as an individual, Sheila Fraser, former Auditor General of Canada. Welcome to the committee.

Please proceed.

 [Translation]

Sheila Fraser, former Auditor General of Canada, As an Individual: Thank you, Mr. Chair. I am very pleased to be here and I would like to thank you for the invitation to appear before this committee to comment on Bill C-23.

I would first like to emphasize that my comments are mine alone. I do not represent the Chief Electoral Officer, Elections Canada nor the advisory committee that I co-chair.

In the interest of full disclosure, I would like to advise the Committee that I have received an amount of $2,450 for my participation to date on that advisory committee. I have also been engaged as a member of boards of selection for various positions within Elections Canada, and was paid $976 in 2014 and $3,240 in 2012 for those services.

 [English]

As you are aware, I had the privilege of serving as the Auditor General of Canada for a 10-year term, which ended close to three years ago. The Auditor General is one of seven officers of Parliament who play a very important role in our democratic system.

The Privy Council Office refers to these officers as agents of Parliament and states:

Agents of Parliament are a unique group of independent statutory officers who serve to scrutinize the activity of government. They report directly to Parliament rather than to government or an individual Minister and, as such, exist to serve Parliament in relation to Parliament's oversight role. Agents normally produce a report to Parliament to account for their own activities, and their institutional heads are typically appointed through special resolutions of the House of Commons and the Senate. To maintain the independence of the Agent, the degree of influence exercised by the executive arm of government is minimal.

 [Translation]

The independence of the officers of Parliament, both in fact and in appearance, is critical to their credibility and their ability to carry out the mandates entrusted to them. I was very pleased that government recognized the importance of this independence in 2007-2008, when a number of administrative policies were amended to recognize that it is the officer of Parliament who is responsible for implementing these policies and ensuring compliance with them, rather than, as was the case in the past, a minister.

For example, some requirements of the government’s communications policy do not apply to officers of Parliament.

The Treasury Board Secretariat worked very cooperatively with the officers at the time to address our concerns.

 [English]

In light of that, I am very concerned by two provisions of this bill which would affect the independence of the Chief Electoral Officer and his organization.

First, article 18 that restricts the Chief Electoral Officer's communication with the public to certain specified, limited information. Outreach activities, encouraging people to vote and educational initiatives would no longer be permitted. An independent officer of Parliament should be able to bring any issue that he or she believes important to the attention of Parliament and the public.

Secondly, article 20 will now require the Chief Electoral Officer to obtain Treasury Board approval to “fix and pay the remuneration and expenses” of “persons having technical or specialized knowledge” engaged on a temporary basis. This is clearly an infringement on the independence of the Chief Electoral Officer.

In comparison, the Auditor General Act explicitly states that the Auditor General does not require the approval of the Treasury Board.

In addition, the government's contracting policy specifically exempts the officers of Parliament from obtaining Treasury Board approval.

I am also concerned that should this article be adopted, it could create operational difficulties for Elections Canada in managing an election, given the hundreds of people with specialized assistance that it requires.

 [Translation]

In 2005, the Office of the Auditor General conducted a performance audit on the operations of Elections Canada. At that time, we concluded that Elections Canada plans, manages, and administers the federal electoral process well, according to applicable authorities, and that it plays a key role in supporting the fairness and transparency of the electoral process. I encourage the committee to ensure that this proposed legislation does not undermine that.

 [English]

Mr. Chair, this concludes my opening remarks. As a final remark, I would like to thank the clerk of the committee and the Senate staff for their assistance to me in preparing this statement, and I would be pleased to answer any questions the committee members may have.

The Chair: Thank you very much. We will begin the questions with the deputy chair of the committee, Senator Baker.

Senator Baker: Thank you, Sheila Fraser, for appearing before us today and for your remarks.

You were the Auditor General of Canada. You said in your opening statement that you audited the Elections Canada office in 2005.

We have heard before this committee testimony that was severely adversely critical of the Office of the Chief Electoral Officer, the operations of the office, the running of the office, the office of the commissioner as well. We heard that testimony here today.

When you did your audit of the office, did you find anything resembling mismanagement, disorganization and not fulfilling the principles laid out in the act on behalf of that office?

Ms. Fraser: No, Mr. Chair. In fact, while any audit will have recommendations in it, I would say that the report at the time in 2005 was a very favourable report.

I would also mention that Elections Canada certainly has a very excellent reputation internationally.

Finally, as for financial management, there is a financial audit that is done every year of all of the officers of Parliament, which is produced in Parliament, and to my knowledge, certainly all the time that I was Auditor General, there were never any issues about financial management.

Senator Baker: In your presentation to us today, one of the main points that you made was that an office of Parliament does not have to go to Treasury Board for approval, and you are saying now with this legislation, this changes the picture. Could you elaborate on that for us?

Ms. Fraser: In 2007-08, the officers of Parliament worked very closely with the Treasury Board Secretariat to review a number of administrative policies that would require the intervention of ministers into the management of those offices.

I will give you a clear example that was in the communications policy, that all of our communications had to be approved by government. As you can imagine, for officers of Parliament, that was not something that we looked on kindly. We had never been asked to submit, quite frankly, our public statements or any news media reports that we were doing to the Privy Council Office, but the provision was there that we could be required to do that.

We worked with the Treasury Board Secretariat, and it was actually a very long process to review all of these policies. They did recognize the need for the independence of the officers of Parliament from government, that government could not interfere, if you will, in the running of the offices.

That does not mean that we are not subject to Treasury Board policies. We are. I can't use “we” anymore. The officers are, but the accountability for that responsibility is now with the head of the agency. There are provisions where the Treasury Board Secretariat can verify that.

A large number of administrative policies were changed, including the communications policy and the contracting policy. If the committee wishes, I can certainly indicate to the clerk where to find that information, but there is an explicit directive that the contracting policy, with regards to the approval of the Treasury Board, does not apply to the officers of the Parliament.

Senator Frum: Welcome. Just to begin, and for the purpose of transparency and disclosure, like you said, you said that you so far have received $2,450 for your participation on the advisory committee. Can you tell us the total length of your contract and what you anticipate will be the total remuneration in that position?

Ms. Fraser: The contract is for one year, which can be extended two additional years, so it can cover three years. The remuneration is based on hours of work or participation in the committee.

I would expect there may be another one, perhaps two meetings this year, and the remuneration would probably be about the same per committee meeting.

Senator Frum: Thank you.

I want to ask you about your statement and one of your chief objections to this bill. You have been very forceful in your objections to it. You have gone so far as to say that you think it is going to be very difficult to have a truly fair election in 2015 if Bill C-23 is passed, and you have said that one of the reasons why you feel so strongly that it won't be a fair election is because you think an independent officer of Parliament should be able to bring any issue that he or she believes important to the attention of Parliament and the public. Now, that's a very broad statement and critique, that they should be able to comment on any issue they want. Do you think it would be okay for them to comment on any policy issue?

Ms. Fraser: No. I think the officers of Parliament know well that they do not comment on policy. But should, for example, the Chief Electoral Officer note that there are irregularities during the process of an election — for example, inappropriate calls to electors telling them to go to the wrong voting station — he should be able to inform them to be aware of that; and that they do not communicate by robo-calls, and then to direct them as to how to deal with that. That's the kind of information. I think it's very clear to all officers of Parliament that they do not comment on policy.

Senator Frum: So you actually don't think they should be able to bring any issue that they believe important to the attention of the public?

Ms. Fraser: Well, I didn't think I had to go into a long and exhaustive list. My concern is that the Chief Electoral Officer is now very limited and can only comment to the public on the information that is specified in article 18.

Senator Frum: So while you think that article 18 is too prescriptive, we can agree that saying they should be able to say anything they want is too broad?

Ms. Fraser: Anything that he or she believes important.

Senator Frum: Right. Excuse me. Let me quote you correctly. Can you not agree it's a broad statement that they should be able to bring any issue they believe important to the attention of the public?

Ms. Fraser: Well, that's your opinion.

Senator Frum: That is my opinion, but I'm asking you. I guess what I'd like to understand from you is if you were to change article 18 because you find it too narrow, how would you broaden that?

Ms. Fraser: I would encourage you to look at article 8 of the Auditor General Act, which indicates that the Auditor General can comment and issue a report to Parliament on anything that he or she believes important. It's already in other legislation.

I think you have to respect the officers of Parliament that they will work within the mandate that is given to them, and they know that mandate and will respect it.

 [Translation]

Senator Joyal: Welcome, Ms. Fraser. I was surprised to hear that you were re-engaging in public service in an electoral context because, by definition, elections are always coloured by partisanship.

When I saw that you had given an interview last week that was reported in La Presse, other newspapers and the media last Friday, I rushed to read it because I did not spontaneously connect your experience as auditor general to the experience and wisdom that you are able to bring, I would say, to an assessment of the bill being studied by this committee.

When you said in that interview, and I am quoting the Canadian Press article, that you believe that it “would disenfranchise thousands of voters”, what specifically were you referring to? Was it the abolition of the vouching system, which has been a legal mechanism for a long time and is used by the majority of Canadian provinces? When you talked about disenfranchising a significant number of voters, were you referring to those clauses of the bill in particular?

Ms. Fraser: Yes. The House of Commons committee has heard a tremendous amount of evidence from various groups who have indicated that eliminating this process as well as the use of voter cards would make it difficult for thousands of people to exercise their right to vote. The right to vote is absolutely essential to our democratic system. I believe that we should all be concerned even if only one person is prevented from voting.

This is more a question of proof of address than of identity. The 39 pieces of identification have been discussed at length. Many of the documents on that list do not provide an address. I believe that a number of examples have been given of people who will not be able to vote because they will not have proof of their current address.

Senator Joyal: Does your concern for the accessibility of voting have to do with the fact that, in short, the bill’s provisions generally restrict the right to vote with conditions that, in your opinion, would not satisfy the right to vote confirmed by the Constitution?

Ms. Fraser: If we eliminate the option of one person being able to confirm the identity of another person, I believe that we must find another way to allow people to exercise their right to vote. There has to be a mechanism that takes into account the barriers to voting faced by some people.

Senator Joyal: You believe that the bill has taken the most expedient approach, that is, it eliminates the mechanism without considering if there is another way to facilitate the right to vote.

It seems to me that ever since I have been involved in elections, and that goes back a number of decades, the law has always tried to facilitate exercising the right to vote. Obviously, the law also seeks to prevent fraud or the substitution of persons. It is vital that we be concerned with that.

However, the objective of the bill should be to facilitate the right to vote. If the individual cannot provide the basic information required by law, providing an alternative mechanism would seem to be the reasonable approach in the circumstances.

What is missing from the bill, as you stated, is an alternative mechanism for providing proof of address when an individual does not have a written document. We will now only have written proof. We know our criminal law system. In matters of criminal law, I defer to Senator Baker.

 [English]

Written proof is always the best proof, but the system also provides for additional elements of proof if you can't have a written document to assert what you say.

 [Translation]

By analogy, it is somewhat similar in the electoral system. There must be flexibility with respect to an alternate mechanism that has to be available to citizens who do not meet the basic requirements.

Ms. Fraser: I would like to add a few comments. More and more, we are receiving our mail electronically. Our bank statements, correspondence, children’s report cards, everything is electronic and electronic documents are not accepted and cannot be used as proof of address.

When talking about irregularities or mistakes, we have to recognize that there were problems in the last election. The Neufeld report clearly indicates that there were many administrative problems.

If I could use an analogy, an audit almost always uncovers mistakes. But we should not jump to the conclusion that there is fraud. Instead, we should try to understand why so many mistakes were made. Was it because the forms are not clear? Are the rules not explicit? Did the people not receive proper training? Did they have too much work and therefore they did not take the time to properly fill out the forms?

We have to try to understand why these mistakes were made? The Neufeld report makes a number of recommendations regarding staff training and the organization of a polling station, and we hope they will help reduce the number of mistakes and make the system fairer for everyone. When mistakes are found in expense reports, we should not jump to the conclusion that we should no longer allow expense reports. It is somewhat the same thing. We have to try to understand why mistakes are made and introduce corrective measures.

Senator Dagenais: Thank you, Ms. Fraser, for being here today. I have two questions. The first, which concerns all of us at this meeting, is the identification of voters using identity documents. You know that many people today, when they are at airports, have to identify themselves, even if just to obtain their boarding pass. Even here, when you want to enter Parliament, you have to identify yourself. I find that curious because people want to vote—the government is obviously here, thus we could tolerate a more flexible measure.

I think that an election is not a surprise. Usually, an election is announced about one month beforehand. I believe that the bill’s objectives include preventing fraudulent voting and protecting the value of the citizen’s vote.

There is only so much we can do collectively when it comes to citizens’ responsibilities; citizens have the duty to assume their responsibilities if they wish to exercise their right to vote. I would like to hear your thoughts on that.

Ms. Fraser: I believe that the greatest difficulty remains providing proof of address and not identity. Some people definitely have difficulty proving their identity. I am thinking of rather marginalized groups of our society who do not travel by plane, for example, or the homeless. It is very likely that they do not have an identification card. Should we exclude these people from a democratic process? That will be up to you to decide.

I believe that the major problem is the residential address. My own daughter would have a great deal of difficulty because she receives all her report cards, credit cards and information electronically. She lives with us and does not have bills to pay. She could probably ask her university for an attestation. However, can we ask all universities to do this for all their students? That might be a consequence of requiring such a document. Why could I not confirm, with my pieces of identification as proof of my address, that she is my daughter and that she has the right to vote?

Senator Dagenais: On another matter, and you will correct me if I am mistaken, the new bill will separate administration from investigation. Please comment on that.

In some ways, we know that the administration, without this being a criticism of the Chief Electoral Officer, has sometimes come up short when it comes to expense reports. There have been endless delays. I even believe that some official agents have not yet received confirmation that investigations pursuant to the 2011 election have been completed. That usually takes nine months.

I did not have the chance earlier to ask the Chief Electoral Officer this question. I am certain that he has enough administrative work to do. Could we not at least relieve him of the responsibility to conduct investigations?

Ms. Fraser: I believe that the Chief Electoral Officer indicated the difficulties that this could create in terms of information sharing. If the Commissioner is moved, we must give the Chief Electoral Officer the means to share information. There has been a great deal of discussion about how the organizations should be structured.

If I may, I would like to read an excerpt from the 2012-13 annual report of the Director of Public Prosecutions. Unfortunately, I only have an English copy.

 [English]

The PPSC prosecutes charges of violating federal law laid following an investigation by a law enforcement Agency. The PPSC is not an investigative agency and does not conduct investigations. The separation of law enforcement from the prosecution function is a well-established principle of the Canadian criminal justice system.

 [Translation]

It is not unusual for the functions of administration and investigation to be under the same umbrella. We have looked at the Canada Revenue Agency and there have been other examples. The Ontario Securities Commission even goes further than that. It is quite common for these two functions to co-exist.

 [English]

Senator Moore: Thank you, Ms. Fraser, for being here. I have two questions in response to Senator Baker's question with regard to your office when you were Auditor General. You conducted the performance audit on the operations of Elections Canada. You concluded that their planning, management and administering of the federal electoral process was well done and you encouraged the committee to ensure that this proposed legislation does not alter that.

If this bill passed in its current form, would Elections Canada be able to carry out its mandate? If not, what would be the most seriously harmed aspects of their mandate?

Ms. Fraser: This is, of course, all hypothetical. I think the greatest difficulties, or potential difficulties, would be in the lack of independence of the Chief Electoral Officer in being able to contract specialized staff. When we think of, for example, the IT people who are required to run an election, would they be considered experts? I would think so. It would require Treasury Board approval. Just the process sometimes to get those approvals can be very long. In an election period, you need to be able to respond quickly. I see that as a difficulty.

Obviously, the mandate would be changed by article 18 and would restrict his ability to encourage people to go to vote or the student education, but I think there could be difficulties in his inability to speak more broadly should there be irregularities in the course of an election.

Then the other one, which he has mentioned, is moving the commissioner, unless there are provisions for sharing of information. Again, I think that could really affect the whole electoral process.

Those are three examples.

Senator Moore: You were quoted in a Canadian Press article back on April 4 of this year. I think Senator Joyal might have alluded to this. I want to quote what you said and I will ask you to expand on it. You said, and I assume the quote is accurate:

Elections are the base of our democracy and if we do not have truly a fair electoral process and one that can be managed well by a truly independent body, it really is an attack on our democracy and we should all be concerned about that. . . .

When you look at the people who may not be able to vote, when you look at the limitations that are being put on the chief electoral officer, when you see the difficulties, just the operational difficulties that will be created in all this, I think it's going to be very difficult to have a fair, a truly fair, election.

I'd like you to expand upon that, please.

Ms. Fraser: I'm very concerned about the possibility that a large number of people will not be able to vote. I think it could create enormous havoc at polling stations if people arrive and are told they cannot vote because they are not able to prove where they live. The Chief Electoral Officer and all of those people in those polls will have to deal with those people.

If there are irregularities that occur and the public worries about what to do, for example, if they're getting calls saying to go to another voting station or the station has changed and they realize this is not correct and no one can reassure them about what is actually happening and what they should do, I think the public starts to lose confidence in the electoral process. We should have faith in our electoral process and we should have faith that the results are true and fair and actually represent the will of the people. I think up until now we have had that, and I just worry that that could be undermined by this.

Senator Batters: Thank you very much for attending before our committee today. I listened to a couple of the interviews you gave over the weekend and I got the transcripts of them so I would have an accurate reflection of what you said in them. I like the phrase that you used when you were on “The House.” You said, “It reminds me of this wonderful little phrase that one can disagree, but one should not be disagreeable.” I hope if we may disagree today, I hope that is how we may handle this.

Obviously, you have a lot of credibility with the Canadian public given the fantastic public service you have provided to the people of Canada. I give you a lot of credit for the fact that in each of the interviews, on “The House” and also on CTV's “Question Period,” you made a similar comment. You said on “The House,” “I'm certainly not an expert in electoral legislation or even electoral operations, but I do think as a citizen I have a right to voice my concerns.” Clearly, Mr. Mayrand, the commissioner and the former commissioner are experts.

Then on CTV's “Question Period” you said, “I do not purport to be an expert on elections legislation or the operations of an election, but I think we've heard from enough people in testimony about the difficulty it would create for many Canadians to be able to vote,” and then you go on.

I appreciate you made that distinction. Would you then agree it is fair to say that the comments you have made recently in the media about elections legislation and the operation of elections are largely taken from those people that you referred to as experts, such as Mr. Mayrand, the commissioner of elections and those types of people?

Ms. Fraser: Certainly, I did look at the information on Elections Canada's website and the analysis that they performed of the bill, but I also did my own research, as you will see when I quote the Director of Public Prosecutions from his report on plans and priorities and annual report.

I have listened quite extensively to the testimony before the House of Commons committee, and I actually sat down with my daughter and said, “Okay, if there were an election tomorrow, would you be able to vote?” I found, to my surprise, that she wouldn't be able to.

So, yes, it has been based on the analysis by Elections Canada, but I have done my own research as well.

Senator Batters: There were a few comments that you made in each of those interviews that I just wanted to draw to the attention of those watching today. Because you have a lot of credibility, there were a couple of things that I think may be errors that maybe you weren't aware of. On “The House,” you referred to what would happen when Canada Post changes the way they deliver mail: “I presume we will all have post office boxes or box numbers; we won't have an address.” That actually won't happen. I've had a community mailbox for probably 17 years and I still have a mailing address; it just goes to a little box at the end of my bay and I pick it up there.

Ms. Fraser: I asked that as a question. I must admit, I have had other conversations where people say they have boxes and only have a box number. I tried to find on Canada Post's website how this would work and could not find any information. It was a question as to how and something I would have thought somebody should answer.

Senator Batters: I can reassure you that my little box at the end of the bay still lists my address.

Also, you indicated on “The House”, “My father used to be in a nursing home. I mean, I don't know that he would have had ID that had his address on it. And then to expect that homeless shelters and the retirement homes are going to start giving letters, I mean is that any better than having someone vouched for you?”

Are you aware that with the vouching process, as it exists right now, one person can vouch for only one person? Some of the attestation documents that have occurred since you audited Elections Canada in 2005 are brand-new documents, which Mr. Mayrand testified to today. Some of these things really help people who are in nursing homes, homeless shelters, retirement homes and First Nations bands. We now have Attestation of Residence issued by the responsible authority of a First Nations band or reserve, for shelters, soup kitchens, senior or student residences or long-term facilities. Those are all new since you audited in 2005. In my view, those are methods that people would have in order to provide their address to make it easier for those groups.

Ms. Fraser: I agree. I can only repeat what Mr. Mayrand said in testimony that these homes, bands, whatever, are not required to deliver those documents.

Senator Batters: He did also say that it was a widespread, common practice to provide those.

Ms. Fraser: Anyway, I think that's something to review with the Chief Electoral Officer.

Senator Batters: I have one further question. The Auditor General does not have the power to compel testimony. Isn't that correct?

Ms. Fraser: The Auditor General does have the rights of a commissioner and can. I don't know that the office has ever actually used that, but yes, the Auditor General does.

Senator Batters: Isn't it just the power to compel documents but not to compel testimony?

Ms. Fraser: No. They can compel testimony as well.

The Chair: Do you have a supplementary on this, Senator Plett?

Senator Plett: Thank you, chair.

Does your daughter have a health card?

Ms. Fraser: She has a health card, but it does not have an address on it.

The Chair: I don't consider that a supplementary question. We will move on to Senator McInnis.

Ms. Fraser: My health card doesn't have an address on it.

Senator Joyal: There is no address on a health card.

Ms. Fraser: If I can add, I don't think you can require someone to produce a health card as proof of identification. It may be allowed under this act, but I think generally health cards cannot be provided.

Senator Joyal: There's no address on a health card.

Senator Baker: You can't compel.

Senator McInnis: Thank you. It is nice to see you in person. We have all seen you before on television and heard from you.

You are the co-chair of the advisory board that was created by the Chief Electoral Officer. Who is the other co-chair?

Ms. Fraser: Justice Ian Binnie.

Senator McInnis: Yes, I saw his name on the board.

The board is a list of who's who. It has a whole host of celebrities, such as Lise Bissonnette, Ian Binnie, Roberta Jamieson, Preston Manning, John Manley, Bob Rae, Roy Romanow, Hugh Segal, Michèle Thibodeau-DeGuire, Paul Thomas, Michael Wilson and Cathy Wong.

As Senator Moore mentioned directly, your comments were reported widely. This particular piece of legislation would be, I would say, monumental in terms of Elections Canada. Did you have a board meeting to discuss this?

Ms. Fraser: We have held two meetings. We had one meeting in person in December, and we had one meeting by telephone — I'm afraid I just can't remember the exact date — shortly after the bill was introduced. That was about a 45-minute to one-hour conversation.

Senator McInnis: You come in today, and you distinguish and you state that you're speaking on your own.

Ms. Fraser: Absolutely.

Senator McInnis: But because of your notoriety across this country —

Senator Ringuette: She's not able to speak as an individual?

Senator McInnis: No, just a second. You are. But the article that I read did not say that you were speaking on your own. With respect, the article is quoting you. Whether people agree or disagree, I guess you are entitled to your opinion. I take this that you are speaking for the board; you are co-chair. You didn't distinguish yourself in this article.

Ms. Fraser: If that impression was given, then I regret that.

Senator McInnis: It was more than an impression.

Ms. Fraser: I certainly made no indication to anyone that I was speaking on behalf of the board, and quite frankly, there are very different views in an advisory committee, which is actually what one would want. So I'm not speaking on behalf of anybody but myself.

Senator McInnis: Well, you are telling us that now, but here is a headline where I took it that you were speaking for this board. So I take it that they may not agree with you. Is that correct?

Ms. Fraser: I'm sure there are other people on that advisory committee who do not agree with me.

Senator McInnis: Okay. Well, good. That's good to know.

Ms. Fraser: If I may, chair, that is the role of an advisory committee. The Office of the Auditor General has had these kinds of advisory committees for decades, and it is important to have people with opposing points of view when you discuss issues so that you can have a broader appreciation and understanding of what people think.

Senator McInnis: I couldn't agree with you more, but here is what Canadians know now: The former Auditor General, who has considerable credibility, has made these comments saying that it is virtually impossible now to have a fair election.

Ms. Fraser: I think people would associate me much more in my role as former Auditor General rather than co-chair of an advisory committee.

Senator McInnis: Let's go into some of the quotes. It would “undercut the independence of the chief electoral watchdog.“ Could you explain to me how that is so when, in fact, this bill gives more independence? Where is the undercutting of the independence of the Chief Electoral Officer?

Ms. Fraser: Could you quote what exactly — I mean, as the Chief Electoral Officer, which I tried to explain in my opening statement, there are at least two provisions which would affect his independence on communications and on contracting.

Senator McInnis: On communications, we heard from the minister this morning. In fact, on the contracting, I presume that Elections Canada has a budget.

Ms. Fraser: But it requires Treasury Board approval.

Senator McInnis: Absolutely.

Ms. Fraser: No, no. But the current contracting policy — and I can provide it to the committee — specifically states that agents of Parliament do not require Treasury Board approval.

Senator Joyal: We approved this in 2008.

Ms. Fraser: Now it is being changed.

Senator McInnis: I will question that later.

“. . . impede investigations into wrongdoing . . . “; you stated that.

Ms. Fraser: No, I don't know what you are referring to.

Senator McInnis: I'm referring to the article.

Ms. Fraser: Could you show me what exactly is being said?

The Chair: We're going to have to move on. I will put you on the second round, Senator McInnis, and you can pursue it further on the second round. We will move back to Senator Baker.

Senator Baker: I would like to go back to a comment that you made earlier as to whether or not the Auditor General of Canada has the power to compel that answers be given. The Auditor General is auditing the Senate, so I'm very well versed in the powers of the Auditor General. The Auditor General, of course, has the power of a commissioner of the Public Inquiries Act, which gives them the power to do exactly what the Chief Electoral Officer is requesting right now.

I checked into it. You are correct that it has not been used, to my knowledge, but if the Auditor General continues with his audit, I imagine to the other place, maybe they will need such authority.

Your comment regarding the Director of Public Prosecutions is interesting. You read that as a part of our system of law in Canada, there is a separation of powers between the investigative and the prosecution service. Of course, Senator Dagenais is a great police officer going back, my goodness, 30 years, and his father before him, and he will admit to you on that point that he laid all the charges, but the Public Prosecution Service of Canada, the Attorney General, decided whether or not to pursue it in court. You are absolutely right in your commentary.

Now, do you have anything else that you would like to say to the committee apart from what you have already said?

Ms. Fraser: No, I don't think so. I would just reiterate that this is a very important bill, monumental as has been said, and I think it really does require due consideration and due deliberation.

Senator Baker: Thank you.

Senator Frum: I want to follow up, because you made a comment twice this afternoon that one of your concerns about the limitations on the Chief Electoral Officer being able to speak is that he won't be able to comment if he sees election irregularities. I am confused about why, like anybody else, he couldn't refer any irregularities that he is made aware of to the commissioner who is the investigator. What prevents him from doing that?

Ms. Fraser: Well, I suppose nothing prevents him from doing that, but even the commissioner has indicated that his ability to communicate is very limited. Any reports he gives actually go through the Public Prosecution Service. That's maybe something to review with the commissioner, but I would think that in an election, time is of the essence, and if you have to start referring to somebody else to — I mean, it would be very long.

Senator Frum: The commissioner is the investigator. The Chief Electoral Officer is not in charge of investigations; correct?

Ms. Fraser: No. There is a separation between the two. Maybe I shouldn't have used — well, irregularity, or if he wants to clarify something in a process, should the Chief Electoral Officer not be able to do that publicly?

Senator Frum: Not if it's not his role, and it is not his role. Even right now it is not his role.

Ms. Fraser: When you suspect wrongdoing, if he is trying to, I don't know, educate the public about the need to be — I don't know. We saw it in the Quebec election, where the Chief Electoral Officer came out and clarified.

Senator Frum: Clarifying who is entitled to vote and who is not entitled to vote.

Ms. Fraser: It was more than that in Quebec, much more than that. I'm certainly not a lawyer and others will be better able, but under this restriction that is an in article18, I do not believe that the kind of information that the Quebec Chief Electoral Officer made would be allowed.

Senator Frum: I guess what I'm getting at, the Chief Electoral Officer has an administrative role, the commissioner has an investigative role, and the prosecutor has a prosecuting role. These are three separate roles.

The way it is right now, the structure is that the Chief Electoral Officer is also overseeing the commissioner, and the commissioner reports to the CEO.

Ms. Fraser: As I tried to explain earlier, that is not an unusual situation. It is, in fact, quite common that the investigator has to understand, and there has to be a common understanding of the regulations. You see it in the Canada Revenue Agency; you see it environmentally; you see it in the Ontario Securities Commission, who actually goes even further, into adjudication.

As I said here, the Public Prosecution Service of Canada says that the separation of law enforcement from prosecution is a well-established principle.

The Chair: I will have to jump in here. We're getting to the end of our time, and I have three senators who would like to get last-minute questions. I'm asking them to make them very brief, and the responses in comparable fashion, or I will have to cut you off.

Senator Joyal: When the Office of the Chief Electoral Officer was created, it was one of the first officers of Parliament. It was essentially created because the political parties in the House of Commons could not agree among themselves how to implement the legislation. In order to solve the problem, they decided to create the office. That's how the status of the officer of Parliament started.

They can't agree on where they are in conflict of interest, because each political party has its own interest to defend and so on. They put it in the hands of an officer, outside reach, who will have a very long term of office so another Parliament could not punish him and so on.

The problem with this bill the way I read it, there is a shift on the status of the independence of that officer that is diffused in the system, because it seems that we can't trust him anymore on some of the issues that up to now we have vested in him.

The Chair: Question, please.

Senator Joyal: Am I right or wrong?

Ms. Fraser: It is certainly my impression that some of the comments and allegations that have been made would imply that the Chief Electoral Officer is not objective and independent in performing his duties, and I find that very unfortunate, and actually very troubling that an officer of Parliament is being treated that way.

 [Translation]

Senator Dagenais: I have a comment, Ms. Fraser. I continue to be amazed that people do not have an address. In Notre-Dame de Paris, they are known as the “sans-papiers”, or those without papers.

Someone who receives an unemployment insurance or social assistance cheque must have an address. Those on social assistance, at least in the Montreal area, give the address of the Maison du père, and I have heard that they must now provide income tax returns. Someone receiving old age security or the guaranteed income supplement must have an address. I hope that these people are not foregoing some income. I hope that all Canadians have an address and that this makes it possible for them to vote.

Ms. Fraser: They have an address but, to an increasing extent, they receive their documentation electronically. Electronic documents are not accepted.

Senator Dagenais: A social assistance cheque is sent electronically?

Ms. Fraser: I am not aware of that.

 [English]

Senator McInnis: It is quoted in the third paragraph, where it says, “impede investigations.”

Ms. Fraser: I see that. I think this is something that the journalist wrote. I think it is really in relation to the ability of the commissioner to receive information from the Chief Electoral Officer.

Right now, there are no provisions of exchange of information, and the commissioner, one would hope, would be able to have access to all of that documentation without having to go through a long, complicated process, or to start all that investigation over again.

It really points to the necessity to establish those protocols. As well, the current commissioner and the previous commissioner have certainly talked about their ability to compel testimony, which I think is an essential part as well.

The Chair: Thank you, Ms. Fraser. We thank you very much for your appearance here today.

For our next panel of witnesses, we have with us, from the Canadian National Institute for the Blind, Diane Bergeron, who is the National Director of Government Relations and Advocacy. From People First of Ontario, we have Kory Earle, President of that organization.

Do you both have opening statements? Ms. Bergeron, would you like to lead off?

Diane Bergeron, National Director of Government Relations and Advocacy, Canadian National Institute for the Blind: Thank you.

I just want to explain how I'm using this machine so that, if I stutter, you know why. I have my presentation on the computer. I'm just going to have it read to me auditorily — in my ear — and I will repeat what it's saying. If the computer stutters, that means I stutter, so I apologize in advance.

Thank you, Mr. Chair. Thank you as well to the other committee members for this opportunity to offer testimony on behalf of CNIB today.

CNIB, otherwise known as the Canadian National Institute for the Blind, is a registered charity that has been delivering vital services to individuals with vision loss for nearly 100 years. We are proud to provide community-based support, knowledge and a national voice to ensure that Canadians who are blind or partially sighted have the confidence, skills and opportunities to fully participate in life.

Whether or not a person is living with vision loss like blindness, voting is a fundamental aspect of participation in a democracy. However, the ability of Canadians who are blind or partially sighted to exercise their right to vote depends heavily on the way elections are designed and conducted.

CNIB is pleased to see that accessibility is being raised as an issue for consideration in Bill C-23. We appreciate the opportunity to offer feedback on how this bill might affect voters with vision loss.

Canadians not only have a right to vote but a right to vote in secret. The right to a secret ballot includes the right to mark one's ballot in private, with no one else knowing for whom I'm voting. Voters in Canada also have the right to verify their choice to make sure their ballot was marked in accordance with the voter's wishes and was not spoiled. Unfortunately, the right to a secret ballot is regularly denied to voters with vision loss in Canada.

There are two primary means currently used to accommodate voters with vision loss. First, election acts at all levels provide for registered voters to appoint a designated or elected official to assist in the marking of a ballot based on the voter's instruction. However, this approach does not respect the right to a secret ballot. Voters who are blind or partially sighted must tell someone else, possibly a total stranger, for whom they wish to vote. The voter must trust that that person will mark their ballot in accordance with their wishes, to not intentionally or accidentally spoil the ballot, and to keep their choice forever secret.

Alternatively, many elections acts, including the Canada Elections Act, require that a template be provided to electors who are blind or partially sighted to assist them to mark their ballot. Unfortunately, this template also does not provide a full and effective accommodation of the right to a secret ballot. Unless they were to show the ballot to another person, voters with vision loss cannot check to be sure their choice was correctly recorded on the ballot or that they did not accidentally spoil their ballot.

The inability of voters with vision loss to exercise their right to a secret ballot is a significant concern to CNIB. Although we are extremely pleased to see the issue brought forward through Bill C-23, we believe there are opportunities to strengthen the legislation, particularly around accessible voting.

The ability for the Chief Electoral Officer to test alternative voting practices has been in place since the Canada Elections Act was amended in 2000. To the best of our knowledge, this type of testing has been extremely limited and has not yet opened new opportunities for voters with vision loss to exercise their rights.

Bill C-23 would amend the Canada Elections Act to require that the Chief Electoral Officer obtain the prior approval of the Senate and the House of Commons before testing an alternative electronic voting process in an official vote. Considering that the Chief Electoral Officer has not exercised the power to test alternative voting processes in the 14 years that it has been available, we fear that this approval process will place more of a burden on the Chief Electoral Officer, and we believe that it is unlikely that this situation will change.

As an alternative to what is being proposed in Bill C-23, CNIB recommends that the Chief Electoral Officer be required to test alternative electronic voting processes in a future general or by-election, not merely providing permission to do so.

We have met with the minister and expressed our thoughts on strengthening the legislation to ensure that testing of alternative voting processes, such as voting by phone, Internet or other accessible electronic means, is required moving forward. Without directing the Chief Electoral Officer to test alternative electronic voting processes, we fear that further decades may pass where voters who are blind or partially sighted are denied their right to a secret ballot in federal elections.

Thank you for listening today, and I look forward to your questions.

Kory Earle, President, People First of Ontario: Let me just take this opportunity to thank the chair and the committee for allowing me the opportunity this afternoon to speak. It's good to be back with Diane. I think the rumour will get out: They will think we're having an affair, because this is the second committee before which we've spoken together. Although I think it's on TV now, I want to say that's not happening.

I saw the mood in here earlier, so I had to lighten things up.

It is truly my honour to talk about this from our angle, but to talk a lot more about the literacy and the invisible disabilities that people face each day that are ignored in this act.

I want to take this opportunity to thank the minister, Pierre Poilievre, and MP Scott Reid for having an opportunity to meet with us this past year to talk about this bill and how important it is to our members, not just locally but province-wide and indeed across this country.

We do support this bill. There are not many bills we can turn around and say that we support. We do support some of this bill a great deal. However — I didn't use that word “but” — there are portions of this bill where the refining does need to be straightened — and that will improve people's lives as Canadians right across Canada.

When this law is passed, there should be more added for people with literacy problems. Forty-two per cent in this country face literacy problems. That's a huge number. That number is shameful to acknowledge — 42 per cent. That's not going to get people with disabilities out to vote when they find it difficult on the ballots.

There are a couple of things I will be suggesting to this committee, and I ask that you take those into huge consideration, because it's not me sitting up here and banging heads; it's thousands of people who have called for changes.

Quebec made a resolution to our national board just last year. One of the biggest things our members have passed — and I couldn't agree with more — is that we're proposing that for advance polls on election day, you have a picture, logo and party on the ballot or even at the voting station. Believe it or not, that will help many people with visual disabilities. That actually will help.

When Quebec brought the resolution forward they said it's done there, and it actually increases people to come out and vote for who they want. Again, I'm not suggesting that it necessarily be on the ballot, but at least have it there — an opportunity.

Last week, this week and since then, Diane has raised issues about the constitutionality about the secret ballots. As a democratic society, people have a right to vote, but people should also have a neutral person who they know will vote for whom they selected and not have someone who would be cautious of that. How do I know that person voted for what I did? Maybe I want to vote for the Marijuana Party — not that I'm suggesting that, but there are all kinds of parties here. But that's a possibility, and he may not know. We're asking that be changed.

We must ensure that vouching continues in this country. Not many people have ID. Yes, people in Ontario may have a photo ID. New Brunswick may not have the photo ID that Ontario does. That will eliminate people. In fact, you're going to see the numbers go down in voting and not increase. Our members have indicated that very clearly.

Vouching is a huge issue. As a democratic society, people have the right to vote, yet we are saying that the government will create barriers for many people in this country. This is wrong, and it must immediately change to ensure people can have the opportunity to vote without feeling that they're facing barriers in the country.

One thing that should also be addressed is anxiety. Anxiety is huge. People who go to the polling stations sometimes leave because there are way too many people and they feel isolated. I know that my twin brother is one of them. By supporting people when they come in, having a small area is important so people like my twin brother can vote but not vote in a larger crowd.

The ballots must be clear, with better fonts so that many people with disabilities can see them and understand.

We have heard from Elections Canada that there are campaigns that go on to address many things to encourage people to vote. I don't see particularly that a whole lot of that has gone on, only from meeting with Elections Canada and Pierre. I still think it should be enforced to ensure people how accessible the voting stations are and what's out there. That needs to be enforced — not asking people to do enforcement; it will have a better impact.

Many of those I represent don't know what is going on at Elections Canada, especially when it's time to vote. We have come a long way as Canadians; however, it is our hope that we won't go backwards.

So I ask that you please consider these changes, which will improve many lives. We are pleased to see the extra advanced polling days in this act. We are hoping that we can work together in the best interests of all people.

I would be more than happy, cautiously, to take any questions you may have. I would be delighted to address any questions that you may have. Thank you.

The Chair: Thank you very much.

Senator Baker: Thank you, witnesses, for your presentations to the committee; Diane Bergeron, the National Director of Government Relations and Advocacy of the Canadian National Institute for the Blind; and Kory Earle, President, People First of Ontario.

My first question is directed to Diane. Kory, if you wish to comment on it, we would welcome that.

Given the bill we have before us, you have testified, Diane, that right now, at this very moment, the Chief Electoral Officer has the right under legislation — you mentioned for 14 years — to consider alternative voting processes, for the reasons that you stated, but they have not exercised that right. You are now saying that in this bill, it will further complicate matters because that will be taken away from the Chief Electoral Officer and he must receive the approval of the House of Commons and the Senate.

Is that one of your main points, that the bill actually restricts the bringing into place of necessary changes to the Elections Act to facilitate voting?

Ms. Bergeron: The key piece for us is the fact that the legislation, the bill as it's currently worded, gives permission; and the process that the Chief Electoral Officer would need to go through in order to exercise that ability will be more onerous on him than it is at this point.

However, the wording in providing the direction to the Chief Electoral Officer right now is just giving him permission. What we're suggesting is that the bill and the wording be strengthened to be more directive rather than permissive, which would require the Chief Electoral Officer to test the alternate voting processes.

Senator Baker: In other words, the imposition of the word “shall” — the Chief Electoral Officer “shall” test alternative voting processes — that's your point.

Ms. Bergeron: Yes.

Senator Baker: Kory, you mentioned that vouching shouldn't be eliminated from the law. Could you elaborate a bit on that as far as your organization is concerned and the people you represent?

Mr. Earle: Absolutely. Thanks for the question. With respect to vouching, many people, whether in group homes, whether it’s someone who doesn't have a family — or not necessarily doesn’t have a family, but someone who lives at home — doesn't have the proper ID. I think when you look at ID, you have to be clear that a lot of people may want a picture and an address. That's fine, but I can tell you right now, a lot of people still cannot come up with that.

Manon, who is next to me, if she needs someone to vouch and she forgets her ID and perhaps lives 10 minutes away, because of difficulties she could be facing, I'm saying, “Sorry, go back home and get your ID,” even though she may not have ID; but I'm there as Manon's friend for over 10 years, who knows her better than anybody. What this act clearly does is eliminate that. It's saying, “Sorry, come up with ID or you can't vote.”

I've heard the argument because of fraud or something like that, but you know what? There are so many things that could be done easily now. You don't need an act to make those things happen.

I can tell you right now that the outburst around vouching in this country is beyond big because you're literally taking a person's rights away. How many decades has it taken for people to vote as Canadians? Yet we're saying, guess what? I'm the age of 28, I've been voting for the last 10 years and now I have to come up with vouching. What if something happens to me and I lose everything? People lose ID. That's no exception when it comes down to that, but you don't get your ID the next morning, either; I can tell you that right now.

We're saying take the vouching part out. Don't create barriers. This act should not be about creating barriers for people. It should be about encouraging people to go out and vote. People will vote for who they want, regardless of whether you want to create barriers or not. People will vote. You will know about it at all-candidates meetings because people will raise that.

I met with the minister and I have great respect for him for the fact that he acknowledged and met with us and put some of these things in the act. It says a lot about his credibility. However, the buck doesn't stop there; the buck stops with this committee. We've heard it loud and clear.

There are protests. If you look at the media, there are protests out there against having vouching in the act. I don't watch the reports because I'd rather make my own assumptions. We're not backing down from that, and we won't back down from it.

Senator Frum: I want to thank our witnesses for being here today. I appreciate your testimony.

Ms. Bergeron, I'll start with you. Thank you for the great work that you do.

I totally understand your concerns. They're very serious. I'm just wondering, though, are you aware of any jurisdictions elsewhere in the world that have success with online or telephone voting? Obviously, all the controversy around this bill is around voter fraud, and that's the big concern, balancing accessibility with protection against fraud. That's obviously a big concern about Internet voting as well. Do you have any examples you can share with us of where it works?

Ms. Bergeron: For phone and Internet, we're currently doing the research on that to try to look in the States and so on.

One thing I can tell you is that I have voted completely independently in a municipal election. They have a machine that has large print on screens. It has the ability to change colour contrast, and it has an auditory output and feedback. In the last three, I believe it was, municipal elections — I'm from Edmonton, and in Edmonton I voted completely independently without any assistance. I could check my ballot to make sure it was all accurate. When you're done putting in all the information, the machine spits out a piece of paper that you then take in, just like everybody else. There is no online process.

Senator Frum: Right. You're saying there could be a kiosk option?

Ms. Bergeron: That is one option that could be made available. CNIB is happy to work with government to do the research and to look for an alternative, also for testing. For the disability community, but specifically I would say from where we're concerned, with the vision loss community, often what works for sighted people doesn't necessarily work for us. People think it works because it speaks, but we really need to have the processes tested by the people who will be using them in the future.

Senator Frum: Thank you.

Mr. Earle, I heard your idea about having the candidates' photos next to the names, and I know in other countries, particularly where there are literacy issues —

Senator Joyal: Quebec does that; it's not another country.

Senator Frum: Thank goodness. Hip, hip hooray for that! It's an accepted practice and probably a good practice.

Have you met with Elections Canada? As I understand it, that's entirely up to them; it's not up to government how the ballots are presented. That would be something you would have to discuss with them. Have you had any meetings with them?

Mr. Earle: I have the fortune and privilege to sit on an Elections Canada committee now, which has just been established, and that has been brought up. The question is, perhaps it can be an amendment in the bill. That was actually brought up, and they wondered, can they do it? Second, can there be an amendment in this bill that would actually make sure it happens? That was the suggestion we got.

Then we said: Quebec does it and perhaps others do it. But there's not really a whole lot of clarity, except it could be an amendment to the bill.

Senator Frum: But it also could be done administratively with Elections Canada as well.

Mr. Earle: I didn't know that until just now. I'm going by the meetings I've had. It's good to know what they say.

I think the problem, people are saying, is that unless it's enforced, part of that will enforce it. I think that's the difference. We want to see it happen, if it will help. Again, it's a shameful number, 42 per cent of Canadians. That's going to help so many people and so many lives. We're asking that because we're being told there be an amendment in this bill, so that way we know it will happen all over and not just in one area.

Senator Joyal: Welcome, Ms. Bergeron. I would like to come back to your comments about the test of an alternative electronic voting process. I remember at this committee when we approved that some years ago. The reason we wanted to be involved as parliamentarians to approve the electronic voting system is because it would be a major change in the system. We would go from a handwriting system and counting the ballots to an electronic system whereby everything would be computerized, let's put it that way, to make it easier to understand. We thought at that time that it would be such a change in the system that it cannot be taken out of the understanding and acceptance of parliamentarians. That was essentially what is behind the alternative electronic voting system. I insist here on “electronic.”

In your mind, when you think about a system to make it easier for people with the impairment of reading the ballot, is it an alternative system that is not necessarily electronic, or is it electronic as the alternative system? Do you understand the nuance that I put to you?

Ms. Bergeron: Yes, I think so. For people with vision loss today, electronic speech synthesis, Braille outputs are a source of independence and freedoms for us. The first time somebody handed me an iPhone, I said, “That's no good. It doesn't have anything tactile. I can never use that.” Now I go nowhere without my iPhone because it has given me so much independence and freedom and the ability to do things, even GPS. I pull out my phone. I shake it if I'm lost and it tells me where I am. It's amazing. I barely need sighted people anymore.

Senator Joyal: You're better informed than anyone else.

Ms. Bergeron: But the interesting thing for me is that there are other options. There are low-tech options. I can't tell you what all those options are right at the moment because it depends on the person. I'm a Braille reader, but only a small portion of people who are blind or partially sighted read Braille. Large print won't do any good for me, given that I have no sight at all.

What I can tell you is that in the last federal election, I went there to vote. I was by myself, just me and my dog, and I requested assistance with voting. They provided me with a very nice individual to help me vote, and they took me in. I told them who I wanted to vote for. They checked off my ballot, we submitted it and I left. I thought: I wonder who I voted for, because I have no idea who that person is. I had never met them before. So I have to just trust that they did the right thing. I believe they did the right thing, but I don't know that.

It's a democratic right to be able to do that in secret and in private and independently.

Senator Joyal: By the way, you were fortunate to meet with the minister, both of you, because he didn't meet with the Chief Electoral Officer. So you're very influential persons in relation to that bill.

Ms. Bergeron: My dog is cuter.

Senator Joyal: That's what we heard this afternoon in the testimony of the Chief Electoral Officer. Congratulations. You're very influential.

The point you propose, in fact, would not be covered by this bill because, according to section 20 — and that's what we heard from the former Auditor General, Ms. Fraser, who testified before — the Chief Electoral Officer would have to obtain Treasury Board approval for any initiative that he would want to take in order to propose an alternative system to meet your requirement. According to section 20 now, he would not be free to move on that proposal. He would have to request the approval that he didn't have to do before. Of course, he would also have to request the money, because that would probably go through testing and so on. It would need a visibility study, et cetera. So the bill would not answer your concern the way that it is drafted, certainly, unless I misread it.

Do you share that conclusion? Are you requesting that we specifically amend the bill to give way to your request?

Ms. Bergeron: I am not a lawyer, so on the wording for that section, I can't make recommendations. CNIB's focus is to make sure that people who are blind or partially sighted can vote independently and secretly. We don't believe there will be an opportunity for that to happen unless the wording in this bill changes to be more directive and to require that the Chief Electoral Officer does that. If he is required to do the testing, then my assumption would be, at the other end, that the provision of the finances in order to do that testing would then be made available.

Senator Joyal: Mr. Earle, I'm very interested by your suggestion because, as I said to our colleague Senator Frum, I was surprised when I went to vote two weeks ago. I voted before the election date, as allowed, because I could not make myself available Monday. I was surprised to see a picture on the ballot, the photo of the candidates. I thought it was a great improvement. The only comment I made to myself when I left the ballot box was, “What if there were 20 people?” There were only four candidates in the riding where I was voting, but I think it's immaterial as a comment.

The important thing is that people are able to see. If I have a suggestion to you, there are countries around the world — and I don't want to name some — where the level of literacy is rather low, and they vote. They have found a system to meet and address that situation.

I think when there is a will, there is a way. As you said — and I totally share your principle — the approach should be to make the voting easier and not to restrict it, and to adapt the voting to the physical condition of the person or to the capacity of the person in relation to reading the name. As you know, literacy is a real problem in Canada. It's the best-kept secret of the country.

In Quebec, there are 800,000 people who suffer from that situation, but no one wants to talk about it because it's shameful. It happens to me sometimes when meeting people on the street and they ask me where they are. They cannot even read the street sign above their head. I'm sure you know it.

The question is: How can we approach the changes to the act to make sure that we make voting easier? To me, in some of those cases, vouching is the answer.

Mr. Earle: Absolutely. I'll joke; I bet you supported the Quebec party in this election.

Senator Joyal: I didn't think about the proportional vote. I'm just here about the access to vote.

Mr. Earle: Vouching is a huge thing. We're saying sure, you may not have those ballots and things at elections, whatever the case may be. I think it's a lot simpler than that, and perhaps it's not. People who know best are those who face that challenge each and every day and know the challenges, especially when it comes down to literacy.

Not only can they not see the ballots or understand which party, but you are also now saying that that person can't have support as well because they can't vouch for that person. Right?

I have worked municipal, provincial and federal elections, and it has come a long way. Accessibility is something Canada can be very proud of, but eliminating vouching in this act will only create more barriers for people. Quite frankly, you are going to see the voting go down. People may say that it could go up, but I'm telling you that, from our perspective, you will see it go down. Our board has always been about plain language and putting things in better language for people to understand. Not everybody has an organization to go to, whether it be CNIB or People First or anything like that, to get assistance with that. Then I question whether it is our duty to do that.

Sure, it could be our duty to educate, but that's why we have elected officials as well, to ensure that the act is properly monitored.

Any act you change affects people's lives. I can't tell you right now, when the act is approved, what it is actually going to be like until it is actually done, and that could be very scary at some level because we don't know until it changes. I recognize that people don't like change, but eliminating vouching is definitely going to hurt a lot of people. I brought up the anxiety attack as well.

The Chair: We have got about five questioners and about 15 minutes, so I encourage members, and the witnesses as well, to keep that in mind so that we can hopefully get all of the questions on and answered.

 [Translation]

Senator Boisvenu: First of all, thank you very much for your presentation, which was very instructive. My first question is general in nature. How many blind people are there in Canada who exercise their right to vote? Do you have statistics on that?

 [English]

Ms. Bergeron: I don't have them directly in front of me, but I can certainly get them for you.

 [Translation]

Senator Boisvenu: I would like to have an idea of the numbers in order to understand how difficult it is for a blind person to vote. If it is in the range of 50%, there really is a problem. If only 20% do not vote, it means that the system works well for them.

This is my last question. The current bill wants to focus the Chief Electoral Officer’s mandate on informing people where and how to vote. That will surely affect the segment of the population that is blind. Do you believe that focusing the mandate of the Chief Electoral Officer on where and how to vote could help the blind as compared to the old law?

[English]

Ms. Bergeron: If I understand the question correctly, the importance of getting the information in an accessible format, a way in which we can have the knowledge to go and do the voting, is very important.

What is most important for us is also making sure that there's an opportunity to have any information that would affect a person with a disability made available to them in whichever format, whether it be for someone who is blind and needs it electronically or in Braille or someone with low vision who needs it in large print or another format.

Senator Moore: Thank you both for being here. Senator Boisvenu asked a question I wanted to ask.

It might be instructive to know how many people, Ms. Bergeron, are blind or partially sighted. I'm sort of hesitant to ask the question. Maybe it is a matter of privacy, but it would be helpful for the committee to know that. If you could find that out from your colleagues at CNIB and let the clerk know, it would be useful.

Mr. Earle, I'm not familiar with People First of Ontario. What is your organization and how long has it been doing its work? How many people are involved in it?

Mr. Earle: This is a perfect opportunity. People First is a self-advocacy organization for people with disabilities. It represents intellectual disability, which is illiteracy.

We have been existence in the province of Ontario for 32 years. We also are national. Our national head office is in Winnipeg. I have the privilege to serve as first national vice-president.

We have well over a hundred members in this province that go around. I do commend the federal government for announcing provincial funding to our organization to go around and talk about accessibility issues that people are facing in this country. That's a brand-new grant that we just got.

Our board is dealt with on a volunteer basis. Our entire board and membership is all volunteer. We provide guidance in terms of policy changes that we believe affect our members.

Part of our other mandate was to close the largest institutions in the province of Ontario, such as Rideau Regional Centre, et cetera. We're proud of helping to push that forward. Those are some of the things that we do, and then, of course, we give recommendations today.

Senator Batters: Thank you very much to both of you for coming today.

First of all, to Ms. Bergeron, I was pleased to see, when I looked at the 39 types of ID that are available to be used to vote, that the CNIB ID card is one of those forms of ID. We heard earlier that often that card can have a person's address on it. I'm wondering if you could confirm that for us.

Ms. Bergeron: Yes, it is an option when registering with CNIB that the ID card can have an address added onto it.

Senator Batters: Perhaps your group might encourage your members to put their address on it so that they could use that as one of the forms of ID going forward for the next election.

To Mr. Earle, you referred to your twin brother and how crowds are not something that he reacts well to. Obviously, it is not well known and needs to be better known. What we're trying to do in a portion of this bill is to focus Elections Canada on providing information about where, when and how to vote. For people like your brother, for whom anxiety is an issue with crowds, there are ways that they can vote, by special ballot. They could vote starting on the day the election is called, and every day forward from that, they can go to the returning office to vote. They could vote by mail-in ballot from the privacy of their own home. They could vote at a number of advance polling days, and you certainly referred to it being a positive step to add one day. I'm just wondering if you would agree, then, that focusing Elections Canada on those particular types of measures might help people like your brother.

Mr. Earle: Absolutely. As I said at the beginning, I don't oppose this bill completely. I commend the minister and our MP, Scott Reid, for, first of all, involving people because I think that's really key to addressing that.

The special ballots are not well known out there. I will tell you that right now because I didn't realize about special ballots until I actually met with the minister. Then I started asking people because I thought, “Boy, I'm only 28, but there must be something going on here because I'd never heard of it.” The MPs have to be better educated in terms of how they inform their constituents that there is a special ballot.

Will that eliminate some anxiety? Yes. I don't want people to start going backwards, though, and thinking that they're going to start doing all of these special ballots, and they're not going to go to the voting station. I think it is our hope that they will at least come out, if they can, to vote, but those special ballots are huge. My twin actually would benefit from that.

Senator Batters: Great.

Mr. Earle: But I didn't recognize that until this past year, with the minister, so that really needs to be read out a little bit more. Maybe it does. That's why we talked about that campaign. When you launch a campaign about education, then talk about the special ballot a little bit more.

Senator Batters: Exactly.

Mr. Earle: I would fully support that a hundred per cent and have this past year.

Senator Batters: I have one brief comment. I would be remiss if, to an individual representing a group like yours, I didn't mention the fact that our friend and colleague, Senator Jacques Demers, has done so much for the cause of literacy. I'm not sure if you've ever had a chance to meet him, but he's quite an inspiring individual and has done a lot for that particular cause. I know he will continue to do that in the future.

Mr. Earle: Absolutely. Literacy is a huge thing. Until you actually look at it — and it is something we sometimes do when we do a lot of our work and think we missed something. It is an easy thing.

I don't think it's a criticism. I think it is how we can improve it to do better so we don't mess up the next time.

Senator Batters: Thank you.

Senator McInnis: Thank you for coming.

On literacy, you are saying it is 42 per cent of the public.

Mr. Earle: Canadians.

Senator McInnis: Senator Joyal asked what I was going to ask, but I wanted to highlight this: The importance of using the word “functionally,” because some time ago I hired an assistant, and the first day on the job said that 65 per cent of a certain segment of society of Nova Scotia were illiterate. The outcry from the public, and particularly in that area, because people don't want to know that, was incredible. I had to release her. It was that bad.

I think mentioning “functionally,” because that's what it is. It is not that they're totally illiterate. I just point that out to you. It is not a criticism, but it is just past experience told me that it is very difficult to sell.

Mr. Earle: Past experience, but I caution you, though, from an advocate perspective that that word is used right across the country, because that's the skills even when people go to school and stuff like that.

I don't want to get into changing a lot of words. I will continue with that word, because that's what we know. When you look for the numbers, it doesn't say “functionally,” it says “literacy.”

There's no question I could debate a hundred words on what I think senators need to be changing, but the fact is I'm not prepared to, right? Because I think it's caution. That's where a lot of our members are saying, “Look, I have a literacy problem here.”

Senator Ringuette: Maybe you don't have the answer, but how many people do you suppose would be using mail-in ballots in your community because of, as you mentioned earlier, the secrecy and trusting the person, Ms. Bergeron? Is it easier in regard to mail-in ballots?

Ms. Bergeron: I don't have the percentage. I did just look up while we were going through. According to our cost of vision loss report that we provided in 2007, it was estimated that just under 817,000 people have vision loss in Canada. That would be significantly increased today given the senior population.

Senator Ringuette: Yes.

Ms. Bergeron: And approximately 70 per cent of our clients are seniors, so that would be much higher today.

I don't know how many of those would be doing mail-in ballots. Mail-in ballots are done in print and would potentially assist people who could use magnifiers, or potentially if it was in large print, but someone like myself, that wouldn't assist me. Again, somebody would have to read the ballot to me, and then it would not be a secret ballot.

The Chair: Is there any jurisdiction in Canada that has moved significantly to address your concerns for the CNIB?

Ms. Bergeron: Sorry?

The Chair: Has any provincial jurisdiction moved in a significant way to address your access concerns?

Ms. Bergeron: Access to voting?

The Chair: Yes.

Senator Joyal: The secret ballot.

Ms. Bergeron: I'm not sure right off the top of my head, but I can get that information and give it to you.

Senator Joyal: I have a comment in relation to your question, Mr. Chair. The way I have always approached this issue, because I have been a candidate many times, is to have a person of the family of the voter. My father became blind and, of course, I went with him to vote the last time he voted, but it might happen that there is no family proxy to accompany the person to vote.

My father wanted to vote. He has always voted in his lifetime. He was 95 the last time he voted. For him it was an obligation, a duty. He had a whole perception of what citizenship meant.

What you raise, and I heard you, you went alone to vote. It is essentially when there's no family proxy or close friends that might accompany the person. Is that essentially what you refer to in your presentation?

Ms. Bergeron: I think it is two things. One, it may be that the person that goes to vote doesn't have someone to go with them, but it is also just a right to do it on your own. It is independence.

Senator Joyal: It is autonomy.

Ms. Bergeron: It is the ability to do it on our own just like everybody else does and being treated with an equitable system that allows us to be as independent as we can possibly be without having to rely on others.

I had the option to take someone with me when I went to vote. I have a sighted daughter and I have a sighted husband. Both my daughter and my husband voted for people I didn't vote for.

Senator Joyal: My mother was not voting for the same party as my father.

Ms. Bergeron: In the last municipal election, we had two signs on our front lawn, because two of us decided we wanted to support a different mayor. The piece for that is that it is important for us to be able to do it on our own, independently, and it is part of our democratic rights to do so.

Senator Joyal: I understand. Thank you.

Ms. Bergeron: Thank you very much.

The Chair: Thank you both for appearing here today and assisting the committee in their consideration of the legislation. It is very much appreciated.

Mr. Earle: Thank you.

Ms. Bergeron: Thank you.

The Chair: Members, we’re advised we are going to hear the bells for a vote in very short order. Our next witness is here. The vote is scheduled for 5:30. Mr. Chipeur has travelled from Calgary to be heard today and give testimony, so I'm suggesting that we will suspend now and go to the chamber, cast our ballots, and then return to these deliberations as quickly as we can. Are we in agreement with that?

I'm not sure if that interferes with Mr. Chipeur's flight, but I think we have an obligation to show up for the vote, so we are going to suspend.

(The committee suspended.)


 (The committee resumed.)

The Chair: Our next witness is appearing here as an individual direct from Calgary, Gerald Chipeur, who is a lawyer with Miller Thomson.

Welcome, sir. Do you have an opening statement you'd like to make?

Gerald Chipeau, Lawyer, Miller Thomson, as an individual: I do. Thank you very much, sir.

Honourable senators, thank you for the opportunity to share my legal opinions with you today. My views are based on over 35 years of direct participation in the electoral system. That goes back to 1979, when I participated as a scrutineer on election day. I have engaged in just about every aspect of the electoral system, except that of candidate. I've also litigated election issues at every level of our courts, including multiple-day judicial recounts and Supreme Court of Canada appeals.

I've won some and lost some, but that is the nature of the electoral system that we have; there are always winners and losers. The winners and the losers rarely agree on anything during a campaign, or even afterwards. However, there are three things all participants always agree upon, in my experience: first, fairness; second, integrity; and third, transparency.

I've represented political parties from across the ideological spectrum, including the Reform Party, a populist party with libertarian leadings; the National Party, a nationalist party with left-wing leanings; the Conservative Party, a right-of-centre party; and the Natural Law Party, a party associated with religious thought and philosophy arising out of Asia.

In every case, my clients have desired three primary objectives from the election laws of Canada: first, the transmission of their message to every potential voter; second, a fair and equal opportunity to participate and to get out their vote; and third, an effective prohibition on the participation in the vote of those not qualified to vote.

The absence of any of these three factors would have destroyed the confidence of my clients in the electoral system and would have impacted their faith in democracy. The consent of the governed is crucial to a democratic form of government. Therefore, it is critical that Parliament maintain the confidence of the public in the fairness and the credibility of the vote.

In some submissions that I have heard, there has been concern raised about changes that have been proposed in Bill C-23 to the Canada Elections Act. For the record, I support the changes found in Bill C-23, for the reasons that I will get to shortly. My only real criticism at this time is that the act is getting very long. It will rival the Income Tax Act if we don't take care.

I will now take the committee through three important Supreme Court of Canada decisions relevant to Bill C-23. The first is Figueroa v. Canada, a 2003 decision of the Supreme Court. This case saw the 50-candidate minimum requirement for registered political parties fall in the face of section 3 of the Charter.

The main points made by Justice Iacobucci relevant to Bill C-23 are found at paragraphs 51 and 72. In paragraph 51, Justice Iacobucci said:

. . . s. 3 imposes on Parliament an obligation not to interfere with the right of each citizen to participate in a fair election. As the Court observed in Libman, supra, at para. 47, electoral fairness is a fundamental value of democracy:

The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens. . . .

Paragraph 72 says this:

This Court already has determined that preserving the integrity of the electoral process is a pressing and substantial concern in a free and democratic state.

Figueroa supports all of the initiatives in Bill C-23 to protect the integrity of the electoral system. I note that the recent decision by the British Columbia Court of Appeal in Henry follows Figueroa and also supports Bill C-23.

The second case of note is the Harper v. Canada decision of the Supreme Court of Canada in 2004. That appeal upheld limits on third-party advertising. In that decision, Justice Bastarache continued the theme of Justice Iacobucci and identified the purpose of the Canada Elections Act at paragraphs 63, 72 and 79. Paragraph 63:

The advancement of equality and fairness in elections ultimately encourages public confidence in the electoral system.

Justice Bastarache also addressed the question of how much evidence of unfairness in elections must be available to Parliament before Parliament is justified in acting through legislation to address the unfairness. His answer starts at paragraph 77. He said:

The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case. Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm.

Then in paragraph 78, he quoted Justice McLachlin, as she then was, and said:

Discharge of the civil standard does not require scientific demonstration; the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view.

For the record, I will refer you to other paragraphs that I won't repeat because they basically say the same thing: 87, 98, 101 to 104, 111, and then 121.

Let me just take you to the quote at paragraph 121, where the court explained the decision of the Supreme Court of Canada in Libman and concluded that:

Nor would it be much better served by a system that undermined the confidence of citizens in the referendum process.

My point there is that confidence in the electoral system is a primary focus of the Supreme Court of Canada in its decisions involving the Canada Elections Act.

Let me turn now to identification. One of the most significant questions you must ask yourselves as senators is whether vouching is a part of the Canada Elections Act that promotes fairness and confidence in the electoral system, or does vouching encourage transparency and accountability? Does it lend credibility to the outcome of an election? In my view, the answer to all three of these questions is no.

The next question is whether the vouching model has been replaced with a constitutionally defensible alternative. In my opinion, the answer is yes. That is also the opinion of the Supreme Court of Canada.

Let me explain by reference to the Supreme Court of Canada decision in Alberta v. Hutterian Brethren. It's a 2009 decision of the Supreme Court of Canada. In that appeal, the Supreme Court of Canada upheld an Alberta government requirement of photo identification to drive an automobile in Alberta.

When you think about it, photo ID is required to attend many schools; to travel by commercial air; to sign many legal documents; to visit a bar; and, significantly, to get into this building to testify before you today, one needed a photo ID. It seems to me that it would make no sense to impose a different standard for an act of citizenship — and that is of voting — which is much more important and of much greater consequence.

Chief Justice McLachlin highlighted the legitimate interest of the government in preserving the integrity of public systems and in preventing fraud. Again, I won't read her comments, but they can be found at paragraphs 64, 80, 81, 85, 101, 102 and 104 of the decision. I note that, again, the British Columbia Court of Appeal decision in Henry would support that view of the decision or that part of Bill C-23 that removes vouching from the Canada Elections Act.

Thank you very much for this opportunity to make an opening statement.

The Chair: Thank you, Mr. Chipeur. I'm sure we have questions for you.

Senator Joyal: Would you repeat, Mr. Chipeur, the last paragraph you quoted from Justice McLachlin in the last reference that you made? You said 64, 81, 84, 85 and then I missed the last one.

Mr. Chipeur: Paragraphs 101, 102 and 104. I can actually read them to you. I have them here.

Senator Joyal: No, that's fine.

Mr. Chipeur: For later.

Senator Joyal: Thank you for that precision.

This morning, the minister referred to the case of the Supreme Court in Wrzesnewskyj. You are probably aware of that case, which is a recent case, 2012. You didn't refer to that case in your presentation. Is there a reason why this case —which the minister referred to as being, in his opinion, the legal basis for the legitimacy for his position — is not quoted by you? It's an important decision.

Mr. Chipeur: I do not have any reason for excluding it. There are probably three or four decisions that I could have referred to, but I only had five minutes. I'm not going to in any way reduce or diminish the importance of that decision. I could have just read you the Henry decision, which is a wonderful review of the law in this area, but I thought that these other decisions are more fundamental in terms of the actions of the Chief Electoral Officer and Parliament over time. It was an intention to give you a broad view of what the courts have said.

Senator Joyal: I have another decision. I don't want to pile you up with readings when you'll be travelling back to Alberta, but there's Harvey. v. New Brunswick in 1996, where the Supreme Court gave an interpretation to section 3. I could quote the bench. It's La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major, on an interpretation of section 3 of the Charter of Rights, which is, of course, the right to vote. That's why I was keen to take notes of the paragraphs you were quoting, because I read those decisions to try to refresh my mind when we started discussing this bill.

The legal preoccupation I have with this bill — and you might want to comment on it — is that my opinion is that section 3 of the Charter has a purposive element in it, which is to facilitate the right to vote. I don't dispute the identity. Nobody will dispute that you need to identify yourself when you exercise the right to vote. In my opinion, there is a link between the need to identify and the avenue that you provide for identification.

I don't dispute the objectives. I support it 100 per cent. I don't think anyone in Canada would question that. As you said, the jurisprudence has piled up.

Where there might be movement for interpretation is when you have a system that has been in existence, that has been recognized as providing some useful objective and benefit to widen the exercise of the vote when there are no mainstream identification elements available, how can we accept that we will get rid of that on the basis of no reports that it jeopardizes the integrity of the system?

It seems to me that the Supreme Court would take a very purposive approach to elimination without, as I said, any demonstration — which doesn't need to be scientific, as you rightly mentioned in your presentation — whereby the fair elections act, Bill C-23, is getting rid of 143 of the Election Act. That's where, in my opinion, there is a reasonable doubt about this initiative.

Mr. Chipeur: I hear what you're saying. Let us look at what the British Columbia Court of Appeal said in Henry. In Henry, they quoted the trial judge, and the trial judge said that there was evidence that there had been electoral fraud, that there had been charges in the past that had been brought by Elections Canada. She said:

The Act makes erroneous or fraudulent voting significantly less likely; it also provides reassurances to “those who are concerned about electoral fraud, and thereby would tend to enhance confidence [in the system].

That's at paragraph 45 of the B.C. Court of Appeal decision.

So judges who are looking at this, both the trial judge and the Court of Appeal, have said that actions taken by, in this case, Parliament, to increase confidence will be upheld, and in fact were upheld there.

In Alberta v. Hutterian Brethren, at paragraph 64, the Chief Justice said this:

In my opinion, the province has a legitimate interest in ensuring the integrity of its driver's licensing system and guarding against the risk that it will be used to perpetuate fraud.

In that case, Alberta had in place, for 40 years, no requirement of photo ID for drivers who are members of the Hutterian Brethren. A change was made. A decision was made by Parliament, by the legislature, to change that and to bring in a requirement. In this case, there was no actual evidence that any fraud had taken place.

I would see it that, based upon Alberta v. Hutterian Brethren, a requirement for the security of the driver's licence system, where no evidence of fraud had actually been presented but just a concern about the potential for fraud, the Supreme Court of Canada would defer to the decision of Parliament and would say that so long as the long list of alternatives for identification were there, and every opportunity was given to an individual to get that ID ahead of time, that if that were the case, this kind of requirement would be upheld.

That's what I see in the cases. I don't see any case that goes the other way and says: When Parliament brings in greater security, we're going to second-guess. I see the courts deferring to Parliament's decision on these kinds of questions.

Senator Frum: As a non-lawyer, can I try to see if I can simplify your argument to say that while there are constitutional protections to individuals regarding the right to vote — and that's one of the most fundamental rights that we have — there's also constitutional protection that individuals have confidence in the outcome, and that that right has to live in parallel with the other right. Is that a fair way of putting it?

Mr. Chipeur: I think that's right. Let me just answer that by referring to a report from Elections Canada about the election in Edmonton back in 2006, when 21 individuals voted when they were not actually residents of Edmonton Centre. What that did was deprive the vote of 21 individuals who had voted in that election.

It wasn't a matter of just saying it is a theoretical thing. The fact is those 21 votes cancelled 21 other votes. We don't know how they cancelled them, but the fact was that 21 people would be properly saying, “I voted, yet somebody else voted who wasn't entitled to, and if they voted differently than me, my vote didn't count.” In a real way, the right of those 21 individuals to vote was interfered with by the system that didn't stop those 21 individuals from improperly voting.

Senator Frum: If we think about a hierarchy of rights, which is difficult — this is what lawyers do all day — the hierarchy of rights is that the integrity of the outcome, that's a very high priority, and accessibility is a very high priority, but it is okay to put reasonable limits on accessibility to protect that other constitutional right of confidence in the system.

Mr. Chipeur: I think that's what Chief Justice McLachlinsay based upon what I see her saying in Alberta v. Hutterian Brethren . In that case, she said that the Hutterian Brethren would possibly have to hire someone else to drive them to town, and that may mean someone may have to take the effort to drive downtown to a different polling station if they weren't able to come forward with the right kind of identification, may even have to go out and get a driver's licence.

I know in Alberta, for example, every person, including the homeless, are entitled to a photo ID card even if they don't have a regular address, and they can get that from the government. The government has a system in place.

I know there has been criticism that the federal government has relied upon provincial ID, but that's a natural part of our constitutional structure, that the province can choose to rely on something the federal government has done, and the federal government may rely on something the province has done to fulfill the requirements. We don't have to duplicate what one level of jurisdiction has done.

Senator Batters: Thank you for coming to our committee today. It is nice to have another Western Canadian. I know Senator Plett and I appreciate that.

I was wondering if you could just expand on something for us. You mentioned in your opening remarks, which I know have to be a brief five minutes, that the practice of vouching does not meet those standards that you earlier referenced. I wanted to give you more time to expand on your considered views on that particular topic.

Mr. Chipeur: The biggest concern with vouching is transparency. In a community where everyone knows everyone, then you are not going to have anyone walk in and vouch for someone, because they will know that person is not a citizen, because everyone knows everyone.

The fact is in 99 per cent of our communities in Canada, they're too big for us to know everyone, so vouching just doesn't work anymore. Maybe it did work at one time, but it doesn't work now, because there's not enough of a community in terms of people knowing each other.

When you vouch, there's an affidavit that says “I know this person.” There's no ability for the community as a whole to hold accountable the two individuals who swore that affidavit.

Yes, we could get an audit. There could be an audit, and we could track down each and every one of those individuals through a process that would be very expensive, but in my view, there's nothing wrong with the Parliament of Canada taking the position that it is up to the individual voter to exercise that right. Individuals in the North have to travel hours to vote. Each of us has a duty to take some effort to exercise the franchise, to exercise that right to vote.

The vouching system, as it was, did work at a time when we all knew each other, but today we don't know each other, and because of that, there may be an extra burden placed on someone who doesn't have an ID today. They will need to be informed that next time they want to go vote, they're going to have to get that piece of paper.

I don't know of any jurisdiction that is not in a position to give them that photo ID between now and the next election.

Senator Batters: A photo ID in itself is not required. That can be one of the types of ID that people use, but if people don't have a photo ID, there are many others. Thirty-nine other types of ID are allowable, and within that are some of the attestations of residents for First Nations band or reserve, or a shelter, a soup kitchen, students or seniors residence or long-term care facility. Many of those groups might have trouble getting a regular type of ID that we would think of, but to me, those are fail-safe methods that assist with a more transparent method than a vouching system would. Would you agree with that?

Mr. Chipeur: Absolutely. The reality is today there are very few individuals that do not have photo ID. If they want one, no matter who they are, in every province, they can get one of those identification documents, regardless of who they are, regardless of their circumstances. Even if they are institutionalized, there is a process in place where they can get the ID and then participate through one of the many ways that you have already discussed earlier today.

The Chair: Jean-Pierre Kingsley appeared earlier today and he talked about vouching. Of course, he has a significant background in Elections Canada. I'm not sure if he was speaking on behalf of himself or simply supporting the idea of vouching with the voucher and the vouchee, if you will, taking an oath. Do you have any views on that approach if vouching was maintained?

Mr. Chipeur: I did hear what he had to say. I was watching it on closed circuit. My concern with the approach that he presents is that it doesn't address the fundamental problem, and that is we have no means to make the vouching act transparent to all other voters.

The only way we can hold accountable the two individuals, even if they swear one document together, is through an audit that is very expensive and would have to track down those individuals even if they could be tracked down.

The process is fraught with potential for fraud and abuse, and it is that potential that we should be concerned about. Today, we don't have to call any Canadian fraudulent when it comes to voting. We're not saying that.

What we are saying is we don't want others who are not Canadians coming in and taking part in a process and creating credibility gaps for an election. The process that he identified, in my view, does nothing to address the credibility gap that currently exists when you allow vouching.

Senator McInnis: Very interesting comments. How many cases would you have taken on? I wouldn't have thought there would be all that many, but you mentioned earlier that you've had a number and that you’ve appeared before the Supreme Court of Canada. Have you had quite a number?

Mr. Chipeur: I have. It seems like we have a lot of elections in Canada. We have municipal elections, which I have been involved in litigating. In fact, I participated in a long process of inquiry into the question of whether or not mail-in ballots had been used to defraud the electoral system in Calgary.

At the provincial level, I have been involved in a number of cases where individuals have said, “I had a problem with my nomination process and somebody voted. They were outside the boundaries, and I want to challenge.” We went all the way up to the Court of Appeal of Alberta on that one.

Federally, prisoner voting rights have been something I have focused on at several different levels. We have also looked at federal — I guess you could call them recounts — judicial supervised recounts, where basically all the lawyers and probably 20 different staff from the court just sat in a room like this for two days and counted ballots. The judge just walked amongst the ballot counters to make sure everybody was doing their job. It may not be quite as dramatic as Bush v. Gore, but the fact is that we have had a number of cases that have gone to court.

Interestingly enough, since the recent decisions by the courts of appeal to push out of the courts all of the nomination processes and put them back in the hands of the parties, we have actually had a reduction in the number of cases that have gone to court over the last five years. It has been better over the last five years. However, as we can see, the litigation continues and there's a lot of it.

Senator McInnis: I mentioned earlier today, in perhaps a different manner, that there's always opposition to change.

Mr. Chipeur: Sure.

Senator McInnis: Eliminating vouching will be a difficult thing, but by educating the public, and after an election or two, people will understand that they have to have the proper ID and it will come to pass.

This has been very interesting. I must go away and read some of these cases.

Mr. Chipeur: There are a lot of them.

On the vouching issue, I have been in balloting stations, polls, where individuals have turned around and gone back home and come back with the right ID. It is important enough to individuals that they will do that. Even if they find out at the last minute that they need to do that, there's probably going to be time for them to go home because polling stations often are not that far away.

Senator McInnis: Absolutely.

Mr. Chipeur: I have, unfortunately, seen people not be able to make it onto an air flight because they didn't have the right ID. Today, for the average person, they know that when they go somewhere, they had better take their ID with them.

Senator Moore: Thank you, Mr. Chipeur, for being here. I want to change the topic from vouching to the matter of Elections Canada and its role.

We all received an email from Ms. Paula Tripp of Maple Leaf, Ontario. She raised about a dozen points where she thinks there should be changes to this bill. She states that: “Moreover, under this law as it is written, Elections Canada will not even be able to tell Canadians whether fraud has occurred or even whether there have been complaints. In addition, the bill does not deal at all with the need to give Elections Canada power to compel testimony — the very thing which is at the heart of its failure to have gotten to the bottom of the attempt at electoral fraud that has been found by a Federal Court justice to have indeed occurred during the previous federal election.” That was the robo-call scandal.

Do you have any comments on that?

Mr. Chipeur: My understanding is that it's not that there won't be an ability to communicate. It is a question of changing the communicator so that the roles have changed. The Chief Electoral Officer's role has been narrowed and the communication role has been transferred to another official that has responsibilities to a minister in the government.

My understanding of the reasoning for that — and I certainly never talked to the minister about it so I don't know if this is in fact true — is that it creates political accountability for the task of educating and informing. If it doesn't happen, then there is someone who can be held accountable, where with a Chief Electoral Officer who is an official or an officer of Canada, of the Parliament of Canada, is not really accountable during that time to anyone. If there are some concerns, there is nobody to take your concern to. I would think it would be easier to ensure that there's education afterwards because of the political pressure on the minister responsible to get that job done.

Senator Moore: The Chief Electoral Officer appeared before us earlier today. He certainly gave evidence of the fact that he does do and has done matters of educating the public and then bringing issues to the attention of the public when that needed to happen. Is it good or bad for him to no longer continue to do that?

Mr. Chipeur: My view is someone should do it. It is important. All of these changes that are coming down need to be transmitted and communicated to the voters. Who does it is, in my view, less important than the fact that it is done.

I don't think that there is a right answer. I think it is a matter of parliamentary preference. The Chief Electoral Officer in the past has done an admirable job over the last maybe three or four CEOs that I had the opportunity to interact with. They have all done a good job with that.

That's not a problem, but the fact that you would create another person to carry out those activities, in my view, is a question of discretion for Parliament. As long as it is done, then I would be happy as both a participant in the system and as someone who has observed the way that it has happened over the last few decades.

Senator Moore: It is still a matter of government policy or ideology?

Mr. Chipeur: That's right. In our parliamentary system, having ministers responsible is probably a good thing. When you have an officer of Parliament, that officer should have very specific responsibilities. Whatever those responsibilities are, that officer must be held accountable for fulfilling them.

If there are some activities that Parliament decides to take away from that officer, I don't think that's good or bad. It is not a constitutional or an unconstitutional question; it is a question of parliamentary policy and a decision by Parliament as to how that activity is to be accomplished.

Senator Plett: I apologize for being a little late for this meeting. If you addressed one of the questions that I have here, I apologize.

Before I ask that particular question, one of the problems that have been coming forward is that we have tremendously low voter turnout, and it has been declining. I would like your personal opinion on whether you believe that the lack of being able to vouch, that issue, will erode the voter turnout. or are there other reasons for us having low voter turnout aside from that?

Mr. Chipeur: I did address the issue of vouching earlier, but I didn't address that question. I think it is an important one. I am not a political scientist, so I can't give you the view of a political scientist.

Senator Plett: We will hear from them later.

Mr. Chipeur: As a matter of constitutional law, based upon my reading of the decision in Harper, in Alberta v. Hutterian Brethren and in reading the Henry decision, there's no doubt that the changes that are proposed in Bill C-23 would pass constitutional muster. In other words, they would not be seen by the courts to be creating a barrier that an individual could not surmount and that would, in effect, be an infringement of section 3 that was not justified in a free and democratic society.

As someone who is not a political scientist, I have seen nothing that would change my view and would conflict with what I think the courts would say. In other words, I believe that the courts would find that the vouching system was not necessary in order to have full participation and that those who want to vote will find a way to vote.

It is not too much of a financial or other burden to require some form of ID. I understand that the number of different IDs that can be used is up in the 30s.

Senator Plett: Well, it is 39 to be exact.

Your opinion would be that if somebody showed up at a polling station without one of those 39 pieces or two of those 39 pieces of identification, the reason would be either the individual hadn't bothered to get it or had forgotten left it at home and not that they weren't able to get these two pieces of identification.

Mr. Chipeur: As a matter of certainty, law and fact that in Alberta, every individual is entitled to a photo ID card from the Alberta government, no matter who they are or where they're resident, even if they have no fixed address. Everyone can get one ID issued by the province, and that's all that's necessary. Everyone is entitled to it and everyone can receive it. There's no excuse other than negligence if someone is not able to vote.

Senator Plett: As Senator Moore just pointed out, the Chief Electoral Officer was here earlier today. One of his concerns that seemed to be fairly high up on the list is that the commissioner would be no longer be directly accountable to him but rather to the Director of Public Prosecutions. Do you have any opinion on the fact that the commissioner will no longer be accountable directly to the Chief Electoral Officer?

Mr. Chipeur: My observation is that the existing system, as it was, was an alternative that the courts would support. It's my view that the new model in Bill C-23 would be something the courts would support. My view is that Parliament will be given a broad discretion to implement a system that Parliament thinks will best ensure an election that is fair, transparent, credible and something that can be relied upon as providing equal opportunity for all Canadians to participate in. That's my view. It's a reasonable and valid choice, but it's not the only choice out there. It's up to Parliament to make the decision as to what is best. Certainly in my view this would work just as well as the current model.

The Chair: Does any other senator wish to ask a question before we close? Seeing none, Mr. Chipeur, thank you very much for travelling all this distance to offer us your experience and expertise with respect to the legislation before us. We very much appreciate it.

Senators, tomorrow we're back in this room at 10 a.m. to hear from Dr. Michael Pinto-Duschinsky from Oxford via video conference. He is scheduled for 10 a.m. to 11 a.m. Our second witness, unfortunately, will not be available. We're advised that Dr. Pinto-Duschinsky is an expert in every area around what we're dealing with. With any luck we can extend his appearance tomorrow as we'll have additional time available.

(The committee adjourned.)