Evidence of meeting #22 for Procedure and House Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was vote.
A video is available from Parliament.
March 27th, 2014 / 11 a.m.
Conservative
The Chair Conservative Joe Preston
We'll call ourselves to order, please.
This is the procedure and house affairs committee, here studying the Fair Elections Act.
We're in public, and televised today.
Mr. Harry Neufeld will be here with us for our first hour.
Mr. Neufeld, if you have an opening statement, please go ahead with it and at the end of that we'll go into rounds of questions, and the members of Parliament will be able to ask you all the most intelligent questions they can think of.
11 a.m.
Harry Neufeld Electoral Management Consultant, As an Individual
Thank you, Mr. Chair.
My thanks to you and this committee for inviting me here.
I will make some short introductory remarks, after which I will be pleased to answer the questions you have with regard to Bill C-23, the Fair Elections Act.
Last week, I worked at an orientation conference for senior election officials in one of our provinces. It was attended by a great many newly appointed returning officers and election clerks who had never managed elections before.
I found the trainers were particularly effective in offering a window on democratic first principles that are supported in law around the globe. The universal and equal suffrage guarantees that Canada has supported, both in article 21 of the 1948 Universal Declaration of Human Rights and article 25 of the 1966 International Covenant on Civil and Political Rights, were rightly described as foundational to the conduct of free and fair elections.
Consistent with these principles, the trainers described their provincial election act as a legal vehicle providing all resident citizens over the age of 18 with opportunities to exercise their constitutional rights, guaranteed by section 3 of Canadian Charter of Rights and Freedoms, where it says:
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
The inclusive and unqualified scope of this charter clause, which I have read and heard quoted hundreds of times since it became law in 1982, caused me to reflect on how electoral franchise laws in Canada have evolved and how Bill C-23 departs markedly from that evolution.
There is a healthy but constant tension in every voting system between the two equally important goals of providing broad accessibility, based on the fundamental franchise rights I just mentioned, and ensuring procedural integrity that maintains citizens’ confidence in the process itself. Canada is no different in this regard.
By accessibility, I mean the ease and flexibility by which all eligible voters can obtain a ballot at election time. The considerable extensions to advance voting provisions are one clear example of this.
By integrity, I mean employing administrative mechanisms to ensure that only eligible electors vote, that they only vote once, that their vote is kept secret, that each ballot choice is counted accurately, and that, except for maintaining the first principle of ballot secrecy, the entire process is conducted in a fully transparent manner. The introduction of voter ID laws in 2007 are an example in this context.
In its current form, Bill C-23 creates a fundamental imbalance between accessibility and integrity. It introduces a requirement that every elector must provide acceptable documentation to prove both their identity and address of residence prior to being issued a ballot. The bill would eliminate the current ability of a registered voter, who has the prescribed identity documents, to vouch for one other elector who does not possess sufficient documentation to prove both their identity and address. Further, it bars the voter information card, which Elections Canada mails to each registered voter to advise them where and when to vote, from being used as documentary proof of residential address.
The Minister of State for Democratic Reform has stated that vouching must be eliminated to crack down on voter fraud. He has also stated that voter information cards must be eliminated as identification for confirming a voter’s address because these cards are a replacement for acceptable ID.
The minister has used the “2013 Compliance Review Report”, which I authored, that drew attention to administrative errors made by election officers during the 2011 general election, as the basis for justifying the elimination of vouching. He characterizes vouching irregularities in the context of undetected voter fraud.
I was engaged to audit aspects of the 2011 general election as a third-party election expert, and it is important to me that my report is properly understood. Having listened carefully to what the minister has said, it is my opinion that he has not interpreted my report correctly.
Yes, my report articulates that there were serious problems with vouching during the election, as well as even greater numbers of irregularities in administering voter registration in conjunction with voting. But voters were not the problem. The problem was with the system. My observation was that election officers, ordinary citizens willing to work a very long day without breaks for minimum wage or less, had trouble completing a series of exceedingly complex procedures on their first and only day on the job.
My assessment focused on the fact that election officers are responsible for administering 17 different exception procedures, of which vouching is just one, and that they often completed these procedures imperfectly.
My report concludes that this is a systemic problem related to our antiquated voting model. At no point in the report do I link vouching with fraudulent voting. I've heard the minister articulate that the absence of evidence of voter fraud doesn't mean it hasn't been happening. I heard him further suggest that Elections Canada simply isn't aware of the level of voter fraud with vouching because the agency hasn't investigated the many instances where legally required vouching procedures were not followed. However, over the course of my study I heard of no candidate scrutineers, voters, or media representatives ever raising an issue with respect to vouching fraud. I am not aware of any formal complaints in this regard.
Around the globe, I know of no election administrators who would launch an investigation into voter fraud without solid evidence or any credible allegations or complaints. During the Etobicoke Centre court case, both the Ontario Superior Court and the Supreme Court of Canada were very clear that there was no evidence that persons who were ineligible to vote were allowed to vote due to procedural errors made by election officers. My compliance review report clearly states this in several places. So do the written court judgments themselves.
In addition, the Supreme Court judgment established a new precedent for deciding whether or not to accept votes when procedural irregularities are alleged. This involves a two-step test. First, the occurrence of election process irregularities must be proven. Second, evidence must be presented that satisfies the court that those procedural irregularities actually resulted in ineligible persons being permitted to vote.
Bill C-23 would eliminate vouching on the basis that the minister thinks my report proves the process is so fraught with irregularities that it could lead to courts overturning election results. Irregularities identified have been equated with voter fraud by the minister, as he implies that both legal tests have been met and that elections will be overturned if vouching continues. In the name of improved procedural integrity, the bill would see fit to disenfranchise more than 100,000 eligible voters. Most of these eligible voters have no difficulty in providing ID that proves who they are, but they are challenged to produce documentation that proves their current residential address. Expanded use of the voter information card could remedy this, but Bill C-23, as currently drafted, would disallow any such use.
Here's the thing. A large number of irregularities did occur, but there's no evidence whatsoever that any voters fraudulently misrepresented themselves in the vouching process. There is only evidence that the current voting process model needs an urgent administrative redesign and significant modernization. Our current model has served us well since Confederation, but it must be re-engineered to function in a way that measures up appropriately to 21st century expectations of what universal and equal suffrage should mean. It needs to be redesigned in a way that permits temporary election officers to easily perform their role in a fully compliant manner.
For the past 33 years, I have worked on planning, organizing, and conducting elections in Canada and around the world. I've performed this work in places as diverse as South Africa, Guyana, Libya, and Russia. My interest has always been to ensure that the fundamental rights people have to participate in free and fair electoral processes are upheld. My principal goal today has been to offer clarification with respect to what I wrote in my report on compliance during the 2011 general election. In that light, I believe it is clear that parts of Bill C-23 require careful reconsideration.
Thank you, Mr. Chair. I turn things back to you.
11:10 a.m.
Conservative
The Chair Conservative Joe Preston
Thank you, Mr. Neufeld. Thank you for your opening statement.
We'll go to a seven-minute round starting with Mr. O'Toole.
11:10 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
Thank you very much, Mr. Chair, and thank you very much, Mr. Neufeld, for appearing this morning.
I have read both your final report and your interim report as well as the compendiums attached, and it's clear that you did a lot of work on them. I appreciate that, because I think we've identified that there are some irregularities and challenges, and it's a better way forward.
You were chief electoral officer in British Columbia for 10 years, and you are one of our experts as a result of that work. In the last provincial election in British Columbia, which elected Premier Clark—and we remember the polls were wrong—on election day for registration at the polls, how many people vouched?
11:10 a.m.
Electoral Management Consultant, As an Individual
As you know, I was not the chief electoral officer for the 2013 election in British Columbia, but what I understand from Keith Archer's testimony at this committee two days ago is that approximately 1% of British Columbians vouched in that election.
11:10 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
The Compendium of Election Administration in Canada: A Comparative Overview, which you cite and reference in your interim report, actually goes through the number of provinces and territories that permit vouching on election day. Do you know how many provinces and territories permit vouching?
11:10 a.m.
Electoral Management Consultant, As an Individual
I looked at that document just recently and I'm not sure it's entirely up to date and accurate with regard to vouching.
11:10 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
This is the Elections Canada's document that you cited in your report.
11:10 a.m.
Electoral Management Consultant, As an Individual
I know for a fact that in Saskatchewan, provincially, they do allow vouching, and I'm quite sure that in that document it says they don't.
11:10 a.m.
Electoral Management Consultant, As an Individual
It may be as a result of amendments since that document was put together.
11:10 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
Your recollection is correct, Mr. Neufeld, Saskatchewan is one of four provinces and territories that permit election day registration vouching: New Brunswick, the Yukon, Saskatchewan, and Alberta. So the vast majority of the Canadian population at a provincial level, and here in Ontario at a municipal level do not vouch.
11:10 a.m.
Electoral Management Consultant, As an Individual
Vouching is not the only option for dealing with the situation where you have a requirement—
11:10 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
But on election day, at registration, because I think that's what we're talking about here.... Is it reasonable to make the changes with respect to vouching that we're proposing when most provinces don't engage in that election day vouching process?
11:10 a.m.
Electoral Management Consultant, As an Individual
Election day registration process or election day vouching?
11:10 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
Well, it's when you vouch, as part of your registration, if you're not on the official list of electors, or whatever the provincial equivalent is. To have someone vouch to meet the criteria of eligibility is not done in the majority of provincial elections in Canada and the majority of municipal elections. Is that fair to say?
11:10 a.m.
Electoral Management Consultant, As an Individual
I haven't looked at the legislation for all jurisdictions, but I wouldn't be surprised if you are correct.
11:10 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
Okay.
So in many ways federally we're coming into line with what is happening provincially.
I'm glad you broke down the distinction between fraud.... There has been a lot of talk about fraud—and fraud being proven or not proven—and irregularities. The Supreme Court decision in Etobicoke Centre, which led to your report and a lot of time you spent on that, said the following about irregularities versus fraud. I will quote at paragraph 43 of the decision:
The common thread between the words “irregularities, fraud or corrupt or illegal practices” is the seriousness of the conduct and its impact on the integrity of the electoral process.
So they use the associated words to show that the Supreme Court considers an irregularity just as serious as fraud if the second step you identify impacts the result. So is it fair to say we've spent too much time trying to say, are the irregularities fraud-based or just errors, when the Supreme Court equates them as both being something that should be fixed?
11:15 a.m.
Electoral Management Consultant, As an Individual
With respect, sir, I think you're citing the minority view of the Supreme Court. The majority view was that this double test had to be satisfied.
I don't disagree with you that the irregularities that were identified in my compliance review are serious problems that need to be addressed. I commend Elections Canada for publishing this report and making it public because in many ways it shines a light on a problem that I think a lot of election administrators didn't realize was there.
11:15 a.m.
Conservative
Erin O'Toole Conservative Durham, ON
You've hit a good point. This is actually what the majority examined, and so that was the majority finding. As well, they looked at the distinction between somebody not following the proper procedure, which is permitted by the act, to have procedure, and it meets the charter test to have appropriate procedures.... They say, at paragraph 65, that they think it's superior to actually have someone go away and come back compliant rather than allow a non-compliant vote to happen. At paragraph 65 they say:
However, unlike the rejection of a valid vote, turning away a voter on election day is not fatal to that person’s right to vote. If at first that voter could not comply with a procedural requirement, with some additional effort, he or she can return to the polling station and obtain a ballot.
So the Supreme Court has the opinion that to protect the integrity of our system it's probably superior to maintain a rigid procedure, and it does not disenfranchise someone.
In our act, we are actually allowing an additional day of voting so if people show up and don't have the right documents they can go back. Does that not protect the fact that we're not disenfranchising?
11:15 a.m.
Electoral Management Consultant, As an Individual
For the vast majority of Canadians, there's no issue. They have a driver's licence, and that's the single document they need in order to be given a ballot. There are approximately four million eligible voters in Canada who don't have a driver's licence, or an equivalent provincial ID or territorial ID card. That's where they fall into the second group, where they require two pieces of ID. For the vast majority of those, again, it's not a problem. But there are some people, and it's about 1%, who simply don't, in most cases, have the address identification.
If I take my driver's licence out of my wallet, I have no other identification with me that proves my address. I have a whole lot of cards and things that have my name on them. There's a very high mobility rate in Canada. About 13% of people move every year. Companies and organizations don't tend to put addresses on these identity cards, for obvious reasons; they go out of date too quickly.
11:15 a.m.
Electoral Management Consultant, As an Individual
With regard to having that second piece of address ID and sending somebody home for it, in many cases they're not going to be able to come up with something. The utility bills are sent to them electronically. They're not sent to them on paper because utility companies, rightfully, are trying to minimize their cost and telling their clients that they have to pay if they want a paper bill. Electronic bills are not permitted to be printed and used as an ID.