Bill C-23 (Historical)

Fair Elections Act

An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts

This enactment amends the Canada Elections Act (“the Act”) to require the Chief Electoral Officer to issue interpretation notes and guidelines on the application of that Act to registered parties, registered associations, nomination contestants, candidates and leadership contestants. It also requires the Chief Electoral Officer, on request, to issue a written opinion on the application of provisions of the Act to an activity or practice that a registered party, registered association, nomination contestant, candidate or leadership contestant proposes to engage in.
The enactment also modifies the Chief Electoral Officer’s power under section 17 of the Act so that the power may only be exercised to allow electors to exercise their right to vote or to allow votes to be counted. It also limits the Chief Electoral Officer’s power to transmit advertising messages to electors and requires the Chief Electoral Officer to ensure that any information so transmitted is accessible to electors with disabilities.
The enactment further amends the Act to permit the Chief Electoral Officer to seek approval from parliamentary committees to test an alternative voting process (but where such a pilot project is to test a form of electronic voting, the Chief Electoral Officer must first obtain the approval of the Senate and House of Commons). The enactment also eliminates the mandatory retirement of the Chief Electoral Officer at age 65 and replaces it with a 10-year non-renewable term. It provides for the establishment of an Advisory Committee of Political Parties to provide advice to the Chief Electoral Officer on matters relating to elections and political financing. The enactment also amends the Act to provide for the appointment of field liaison officers, based on merit, to provide support to returning officers and provide a link between returning officers and the Office of the Chief Electoral Officer. It also enables the Chief Electoral Officer to temporarily suspend a returning officer during an election period and provides for the appointment of additional election officers at polling stations. Finally, it empowers registered parties and registered associations, in addition to candidates, to provide names of individuals for election officer positions and changes the deadline for providing those names from the 17th day before polling day to the 24th day before polling day.
The enactment also adds to the Act Part 16.1, which deals with voter contact calling services. Among other things, that Part requires that calling service providers and other interested parties file registration notices with the Canadian Radio-television and Telecommunications Commission, provide identifying information to the Commission and keep copies of scripts and recordings used to make calls. That Part also requires that the Canadian Radio-television and Telecommunications Commission establish and maintain a registry, to be known as the Voter Contact Registry, in which the documents it receives in relation to voter contact calling services are to be kept.
The enactment also replaces Part 18 of the Act with a new, comprehensive set of rules on political financing that corrects a number of deficiencies in the Act. Notably, the enactment
(a) increases the annual contribution limits for contributions to registered parties, registered associations, candidates and nomination and leadership contestants to $1,500 per year and by $25 per year after the first year;
(b) increases the amount that candidates and leadership contestants may contribute to their own campaigns to $5,000 and $25,000, respectively;
(c) permits registered parties and registered associations to make transfers to candidates before their nomination is confirmed by the returning officer;
(d) requires a registered party’s auditor to complete a compliance audit in relation to its election expenses return indicating that the party has complied with the political financing rules;
(e) requires registered parties, registered associations and candidates to disclose details of expenses for voter contact calling services in their returns;
(f) reforms the rules governing unpaid claims, making it an offence for claims to remain unpaid after three years and strengthening the reporting of unpaid claims;
(g) reforms the reporting requirements of leadership contestants;
(h) permits higher spending limits for registered parties and candidates if an election period is longer than the 37-day minimum;
(i) includes new rules on political loans; and
(j) defines “capital asset” for the purposes of reporting the distribution cost of advertising or promotional material transmitted to the public using a capital asset, so that the expense is reported as the corresponding rental value for the period in which it was used, and for the purpose of the disposal of the campaign surplus.
With respect to voter identification, the enactment amends the Act to require the same voter identification for voting at the office of the returning officer in an elector’s own riding as it requires for voting at ordinary polls. It also prohibits the use of the voter information card as proof of identity, eliminates the ability of an elector to prove their identity through vouching, allows an elector to swear a written oath of their residence provided that their residence is attested to on oath by another elector, and requires an elector whose name was crossed off the electors’ list in error to take a written oath before receiving a ballot.
The enactment also amends the Act to provide an extra day of advance polling on the eighth day before polling day, creating a block of four consecutive advance polling days between the tenth and seventh days before polling day. It requires a separate ballot box for each day of advance polling and details procedures for the opening and closing of ballot boxes during an advance poll. Finally, it gives returning officers the authority to recover ballot boxes on the Chief Electoral Officer’s direction if the integrity of the vote is at risk.
The enactment also amends the Act to, among other things, establish a process to communicate polling station locations to electors, candidates and political parties, to provide that only an elector’s year of birth is to be displayed on the lists of electors used at the polls, instead of the full date of birth, to permit candidates’ representatives to move to any polling station in the electoral district after being sworn in at any polling station in the district and to establish a procedure for judicial recounts.
The enactment further amends the Act to change how the Commissioner of Canada Elections is appointed. It establishes that the Commissioner is to be appointed by the Director of Public Prosecutions for a seven-year term, subject to removal for cause, that the Commissioner is to be housed within the Director’s office but is to conduct investigations independently from the Director, and that the Commissioner is to be a deputy head for the purposes of hiring staff for his or her office and for managing human resources.
The enactment also amends the Act to add the offence of impersonating or causing another person to impersonate a candidate, a candidate’s representative, a representative of a registered party or registered association, the Chief Electoral Officer, a member of the Chief Electoral Officer’s staff, an election officer or a person authorized to act on the Chief Electoral Officer’s or an election officer’s behalf. It also adds the offences of providing false information in the course of an investigation and obstructing a person conducting an investigation. In addition, it creates offences in relation to registration on the lists of electors, registration on polling day, registration at an advance polling station and obligations to keep scripts and recordings used in the provision of voter contact calling services.
The enactment further amends the Act to provide for increases in the amount of penalties. For the more serious offences, it raises the maximum fine from $2,000 to $20,000 on summary conviction and from $5,000 to $50,000 on conviction on indictment. For most strict liability offences, it raises the maximum fine from $1,000 to $2,000. For registered parties, it raises the maximum fine from $25,000 to $50,000 on summary conviction for strict liability political financing offences and from $25,000 to $100,000 on summary conviction for political financing offences that are committed intentionally. For third parties that are groups or corporations that fail to register as third parties, it raises the maximum fine to $50,000 for strict liability offences and to $100,000 for offences that are committed intentionally and for offences applying primarily to broadcasters, it raises the maximum fine from $25,000 to $50,000.
The enactment amends the Electoral Boundaries Readjustment Act to authorize the Chief Electoral Officer to provide administrative support to electoral boundary commissions. It amends the Telecommunications Act to create new offences relating to voter contact calling services and to allow the Canadian Radio-television and Telecommunications Commission to use the inspection and investigation regime in that Act to administer and enforce part of the voter contact calling services regime in the Canada Elections Act. It amends the Conflict of Interest Act to have that Act apply to the Chief Electoral Officer. It also amends the Director of Public Prosecutions Act to provide that the Director of Public Prosecutions reports on the activities of the Commissioner of Canada Elections.
Finally, the enactment includes transitional provisions that, among other things, provide for the transfer of staff and appropriations from the Office of the Chief Electoral Officer to the Office of the Director of Public Prosecutions to support the Commissioner of Canada Elections.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Thank you. That's very kind.

I want to thank the both of you for your remarks today. They were very informative. We're quite glad we were able to hear from you.

Today, I'd like to discuss one of the biggest changes being made to the Elections Canada Act. It concerns the role of Elections Canada as described in section 18.

Bill C-23 would amend the Elections Canada Act in such a way as to prevent the Chief Electoral Officer from giving the public much information as regards people with disabilities. That information concerns “the measures for assisting electors with a disability to access a polling station . . . or to mark a ballot.” Those are the changes being sought.

Section 18(1) of the Elections Canada Act currently reads as follows:

The Chief Electoral Officer may implement public education and information programs to make the electoral process better known to the public, particularly to those persons and groups most likely to experience difficulties in exercising their democratic rights.

Would you say that the groups you represent are among those who have greater difficulty than the general public when it comes to exercising their democratic rights?

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Thank you very much, Mr. Chair.

I would also like to thank both witnesses for being here today.

Your input today is really helping us to understand the problems we're studying and the various amendments that could be brought forward to improve the bill.

Under the bill, one of the biggest changes to the Elections Canada Act has to do with the role of Elections Canada as described in section 18. Right now, the Chief Electoral Officer can communicate with the public in a way that will change once Bill C-23 is passed. The changes under the bill...

Can you hear me, Mr. MacKenzie?

[Diane Bergeron]

Yes, there are various things. Some of the stuff that's happening in Bill C-23 addresses some of those issues, in that it ensures that information provided about getting to polling stations, which poll to vote at, and what that process is, those tool kits about how someone with a disability could vote, is going to be made accessible. That's good news for us.

There is also good information for us in the bill. People with vision loss who have a CNIB identification card can use it as identification at the polling station.

One of the issues, though, for people who are blind or partially sighted is that it's not law that they have to be a registered client of CNIB if they are blind. Many people who are blind or partially sighted are not registered with CNIB, and they do not hold that identification card. Those of us who are blind don't drive, so despite the fact that many people ask me for my driver's licence even with my guide dog at my feet, I inform them that we are not given those. For us to get identification, we need to get it from the registry. The registry often asks us for ID that we don't have.

It becomes a big process for us. Part of it also is around identifying one's location through bills. I have a stack of papers on my table and I don't know what most of them are because most of my bills don't come in Braille. If they did come in Braille, it wouldn't do a lick of good if I took the Braille copy of my phone bill to the polling station, since I doubt anybody there reads Braille. It becomes an issue in that sense.

[Diane Bergeron, National Director, Government Relations and Advocacy, Canadian National Institute for the Blind]

Mr. Chair, I'd just like to let folks know how I'm doing this presentation so you understand the technology. I'm using a talking computer so I'm having it speak in my ear and then I'm going to repeat it. If the computer stutters, then I also may stutter, so my deepest apologies in advance for that.

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

CNIB, otherwise known as the Canadian National Institute for the Blind, is a registered charity that has been offering 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 can have the confidence, skills, and opportunities to fully participate in life. Whether a person is living with a disability like blindness or not, voting is a fundamental aspect of participation in a democracy. However, the ability for Canadians who are blind or partially sighted to exercise this right to vote depends heavily on the way that elections are designed and conducted.

CNIB is pleased to see that accessibility is being raised as an issue for consideration in Bill C-23, and we appreciate the opportunity to offer feedback on how this bill may 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 one voted. Voters in Canada also have the right to verify their choice to be sure that their ballots were marked in accordance with their wishes and were not spoiled.

Unfortunately, the right to a secret ballot is regularly denied to voters with vision loss in Canada. There are two primary means used to accommodate voters who are blind or partially sighted. First, election acts at all levels provide for registered voters to appoint a designate or election 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, potentially a total stranger, for whom they wish to vote. The voter must trust that that person will mark the ballot in accordance with the voter's wishes, will not intentionally or accidentally spoil the ballot, and will keep that choice forever secret.

Alternatively, many election 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 ballots. 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 that their choice was correctly recorded on the ballot or that they did not accidentally spoil their votes.

The inability of voters with vision loss to exercise their right to a secret ballot is of significant concern to CNIB. Although we are extremely pleased to see that this issue is being brought forward through Bill C-23, this bill as it's currently written does not adequately address this issue.

The appropriate solution to this problem is to make available alternate voting processes such as voting by phone, by Internet, or other accessible electronic means. The ability for the Chief Electoral Officer to test alternative voting processes 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 House of Commons before testing an alternative electronic voting process in an official vote.

Considering that the CEO has not exercised the power to test alternative voting processes in the 14 years the option has been available, we fear that this approval process will put more burden on any chief electoral officer who wishes to do so.

We believe it is unlikely that making the process more onerous will result in voters with vision loss finally realizing their right to a secret ballot.

As an alternative to what is proposed in Bill C-23, CNIB recommends that the CEO be required to test an alternative electronic process in the future general election or in a byelection, not merely permitted to do so. 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 a federal election.

Thank you so much for listening to my comments today. I look forward to answering any questions you may have.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

—on that issue, but we're here to discuss Bill C-23.

Mr. Willard, if I could turn my attention to you, please, I think, like every parliamentarian here, we've had dinners and meetings with young Canadians through the Forum for Young Canadians. They've been some of the greatest experiences I've ever had.

Unfortunately, on the last couple of trips to Ottawa, I haven't had any members from my riding, but those that I have met over the years, and I've been here for 10 years, I have found to be some of the most engaged, knowledgeable, enthusiastic, and industrious young people I could possibly have met. It has been a true pleasure for me.

I say this because I don't think there's ever a difficulty or a problem motivating that group of individuals, or young people like them, to vote. I think they fundamentally understand whether or not....

You gave the example of someone who, when she first came here, didn't think she would ever vote, but after leaving Ottawa said that she was now waiting for her 18th birthday. I think that almost would be the exception rather than the rule. I have found that most young people who come to the Forum for Young Canadians are absolutely motivated by the time they get here.

That being said, you talked about the need, in your opinion at least, to maintain the provisions contained in section 18 to promote voting among young people. As you would know, in Bill C-23, we are suggesting that the primary role of the Chief Electoral Officer at Elections Canada should be to advertise and to promote how to vote, where to vote, and what identification is needed to vote. Studies have shown that most young people don't vote for the primary reasons that they don't know where or when to vote and they don't know what ID.... We're trying to focus on the how-tos rather than on the motivational factor. In fact, I suppose you could say that any advertising is, in effect, promoting the need to vote.

In your experience, or your opinion at least, if Elections Canada were to concentrate on simply advertising, and advertising significantly, informing Canadians in the lead-up to an election of the requirements for voting—the right ID to bring, how to vote, and where to vote—do you think that would have an effect on increasing voter turnout among young people, or do you think the advertising generally, trying to convince people that they should vote, would be a better way to go?

[Bob Brown, Member, Transportation Committee, Council of Canadians with Disabilities]

Thank you very much for hearing me. I'm not as fast a reader as some of the others, so I'm just going to highlight some of our points. I understand that you have the full presentation.

Council of Canadians with Disabilities, CCD, is a national cross-disability organization with nine provincial, one territorial, and seven national disability member groups. Through CCD, Canadians with disabilities have been speaking out and taking their rightful place in Canadian society by causing the removal of barriers to participation. Approximately 3.8 million, or 13.7% of Canadians—we'll talk about that—15 years of age and older report a disability.

Thank you for hearing from the CCD on the barriers regarding Bill C-23. We want to talk about four points that we feel are of great concern.

On the public education campaigns, unfortunately Bill C-23 ends the Chief Electoral Officer's power to implement information programs about the electoral process. Barriers, such as the lack of plain language information, Braille, large print, ALS-LSQ information for the hearing impaired and deaf, have prevented some persons with disabilities from being knowledgeable about the electoral process. Accessibility and inclusive public education campaigns enable people with disabilities to overcome information barriers and to promote participation. CCD recommends that the Chief Electoral Officer continue to have the authority to implement information programs.

The next is alternative voting process. The printed ballot is inaccessible to some voters. For example, voters with vision impairments cannot independently verify if a printed ballot is correctly marked. Adoption of electronic and telephone voting processes will overcome this barrier, hopefully, but will require testing. Bill C-23 proposes House and Senate approval of future tests of electronic processes. Currently, committee approval is sufficient. As additional approval requirements could hinder barrier removal, CCD recommends that only committee approval be required for the test of electronic voting systems.

Next is voter identification rules. We've heard quite a bit about that tonight. Bill C-23's proposal to eliminate vouching and prohibit the use of voter information cards, VIC, for verifying a voter's residence will disenfranchise voters who do not have full identification of their address. Persons with disabilities living in long-term care facilities and homeless people with disabilities will be among the disenfranchised because they experience barriers to obtaining necessary ID, not because it's not available, but they just can't get it. CCD recommends we retain the current safety net provided by the VIC and vouching.

On campaign contributions, more people with disabilities are seeking public office. People with disabilities experience a disproportionate level of poverty. CCD disagrees with the Bill C-23 exemptions that allow increased contribution from a candidate's personal funds because it will place less affluent Canadians at a disadvantage.

Finally, on enforcement, the Commissioner of Canada Elections should not work for the government of the day. To protect the fairness of the electoral process, CCD recommends that the Commissioner of Canada Elections report directly to Parliament.

Thank you for your time.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

I completely agree with you.

I also have a question or comment for Mr. McLaughlin.

In the article you wrote for The Globe and Mail, you raised an extremely important point, in my view. In that article, you said that young people who are starting to exercise their right to vote at the first election when they have the right to do so are often those who become systematic voters, meaning that they go back to vote at subsequent elections. In connecting the dots between the two, you also mentioned in your article that research shows that turnout decline is mostly driven by young voters not participating.

With specific reference to clause 18 of the bill and the power of Elections Canada to encourage youth voter turnout, do you think that other provisions in Bill C-23—such as the one about the use of voter identification cards, which were accessible only to students in the last election—could also undermine the participation of young people in the electoral process if this possibility was removed?

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Chair.

Continuing with you, Professor Dawood, in your remarks you talked about Bill C-23 failing to provide the commissioner with the power to compel witness testimony and, in addition, receipts and supporting documentation. Vouching is a crucial issue, because it means a lot of Canadians aren't going to be able to vote.

There are other critical issues in here. I wonder if you would comment on that. My understanding is that of $66 million spent in the campaign by the national parties, $33 million was reimbursed by way of the rebate system we have and not one receipt has to be provided. There are no receipts and there's no ability to compel testimony to determine whether or not the submissions were accurate.

Could you comment further on that, but with a view to a Canadian who may be listening? A lot of people are getting cranked up about this. They hear about the vouching, but then they say that doesn't affect them. Can you start to give a reason why other Canadians should care about this bill? Also, what are your concerns in that area of compelling witness testimony?

[Dr. Paul Thomas]

Yes, I think it has happened in Manitoba over the last two general elections. According to the experts in and around Elections Manitoba and me as a commentator, I have not encountered any problems with it. There are alternatives to vouching, but I think there are sufficient safeguards, protections, built into the vouching process that there isn't the likelihood of widespread fraud. I hear the message from the proponents of Bill C-23 now saying it's the potential for fraud. If you're balancing the potential for fraud and ensuring people the greatest amount of access to the vote, I would think that vouching would still be satisfactory and acceptable to most Canadians.

[Dr. Yasmin Dawood, Professor, Faculty of Law, University of Toronto, As an Individual]

Thank you, Mr. Chair, and good evening.

My name is Yasmin Dawood and I'm an assistant professor of law at the University of Toronto. My areas of specialty are election law and constitutional law.

Two weeks ago my colleagues and I wrote an open letter to Prime Minister Harper and the members of Parliament to express our profound concern that the fair elections act, Bill C-23 , if passed, would damage the institution at the heart of our country's democracy voting and federal elections. The open letter has been signed by over 170 professors at Canadian universities who study the principles and institutions of constitutional democracy, including 16 past presidents of the Canadian Political Science Association. This overwhelming and unprecedented level of support from democracy experts across the country is a measure of how damaging we think this legislation would be for the future of our democracy.

Our primary concern is that Bill C-23 would seriously undermine the integrity and fairness of the electoral process. Although we have multiple concerns, I'm going to focus briefly on four issues.

The first issue is on vouching. As Mr. Neufeld has testified to this committee, there is simply no evidence of a link between vouching and fraudulent voting. Although there are record-keeping errors associated with vouching, such errors do not justify the disenfranchisement of thousands of eligible voters. I would like to emphasize that the Supreme Court has made clear that incorrect record keeping of vouching does not amount to an irregularity that would overturn an election result. The charter protected right to vote is fundamental and may not be abridged on account of administrative mistakes.

The second issue is on the role of Elections Canada. Bill C-23 prevents the Chief Electoral Officer from engaging in citizenship education campaigns aimed at increasing voter turnout. While political parties undoubtedly play an important role in motivating citizens to vote, we think that Elections Canada, a non-partisan agency, plays a special role in reaching out to voters that political parties are less likely to target. Historically, political parties have not focused on younger citizens because of low turnout among youth, nor do they reach out to citizens who are unlikely to support them. We need a non-partisan agency like Elections Canada to reach out to all voters.

The third issue is on ensuring a level playing field. We are concerned that certain aspects of Bill C-23 create the actuality and appearance of a partisan bias in the electoral process. For example, Bill C-23 would exempt fundraising expenses from the spending limits for political parties. This loophole would increase the influence of money on politics, and it would be particularly beneficial for the party with the longest list of donors, which in this case happens to be the governing Conservative Party. Bill C-23 also provides that central poll supervisors would be selected from lists provided by the candidate of the party that won the district in the last election. This provision violates the norm that the administration of the electoral process should be strictly neutral.

Fourth is the issue of effective compliance. Bill C-23 fails to provide the commissioner with the power to compel witness testimony, an essential power that is required by the commissioner to effectively investigate electoral infractions. Bill C-23 also fails to require political parties to provide Elections Canada and the commissioner with receipts and supporting documentation about their election expenses. In addition, we are concerned that Bill C-23 would remove the commissioner's ability to speak with the public. Under the new confidentiality requirements of Bill C-23 , members of the public and members of Parliament would have no access to information about the commissioner's investigations into electoral infractions, such as the robocalls affair, unless charges are laid.

Finally, the process by which Bill C-23 was drafted departs from a long-standing political practice in Canada whereby electoral reforms were undertaken through widespread consultation with all the political parties and close collaboration with Elections Canada. We are deeply concerned that the unilateral process by which Bill C-23 was drafted will establish a new precedent in our country's political practices. Rather than providing a neutral structure for political competition, the rules of democracy will themselves become the battleground for partisan control. This political precedent will be deeply damaging to democracy as successive majorities in Parliament rewrite the electoral rules in an effort to gain a partisan advantage. We urge the governing party to consider the long-term consequences of its approach. It will hurt all the political parties and will diminish the strength, fairness, and vitality of our democracy.

Thank you, Mr. Chair.

[Dr. Paul Thomas]

Thank you very much for the privilege of coming before the committee.

I submitted a brief earlier. Tonight, I'll just touch upon several points that were contained within that presentation, and then I'd be pleased to answer any questions that might arise.

I start with the observation that there has been considerable decline of public trust and confidence in politics and democracy in Canada. A similar trend has been happening in established democracies. There are many long-term causes and short-term factors that have contributed to public disillusionment with the political process. I fear that both the process by which Bill C-23 was formulated and is being passed in Parliament and the substance of the bill will further weaken public trust and confidence in the integrity of the election process, the one democratic activity in which a majority of Canadians participate.

Sound electoral governance arrangements based on as much consensus as possible contribute in important ways to public trust and confidence in the election process and to democratic legitimacy.

Turning to the process of electoral law, on process I would observe that the Canada Elections Act is not ordinary legislation. It provides a foundation and framework for fair and free elections. Other countries have recognized that such fundamental laws should not be changed hastily and unilaterally by the governing party.

In the U.K., most election laws require advanced consultation with the national electoral commission. Usually this involves a review of draft bills with the commission officials to ensure that the proposed legislation is workable.

In New Zealand, the Electoral Act 1993 requires a supermajority of members of the House of Representatives to repeal or modify a list of eight key features of the election law framework. This provision ensures that there is some measure of cross-party support for those changes. This leads me to recommend that the bill be amended to provide for mandatory consultation with Elections Canada concerning future changes to the Canada Elections Act.

I also recommend that before the fixed-date election scheduled for 2019 that a comprehensive evaluation of the framework of election law and administration put in place by Bill C-23 be conducted by an all-party committee of the House of Commons.

Turning next to the mandate of Elections Canada, the proposal to restrict communications by Elections Canada to the mechanics of voting is wrong. Of the five other national election bodies that I have studied, none has such a narrow restriction on its communications activities. Informing Canadians on when, where, and how to vote is a core role of Elections Canada that the agency has always taken seriously. The agency did not unilaterally assume broader educational and outreach roles. On February 17, 2004, a unanimous motion was passed in the House of Commons calling on Elections Canada to expand its activities to ensure accessibility for disabled voters and to encourage younger Canadians to participate in the electoral process.

Politicians, political parties, and Parliament have the primary responsibility to promote a more vibrant democracy. Other groups and organizations within society also have responsibility to inform and engage Canadians. Elections Canada is one of those organizations that should be involved. Therefore, I recommend that if Parliament decides to reinforce the core task of Elections Canada by passing the new section 18, it should add a parallel provision that recognizes the right of the agency to study, report, and comment on the conditions within the domain of electoral democracy.

Moving the Commissioner of Canada Elections to the office of the Director of Public Prosecutions is the next topic. I've not heard compelling arguments nor seen strong evidence to justify this relocation. My understanding is that the commissioner acts independently of Elections Canada when conducting investigations and recommending prosecutions. The current location within the administrative framework of an officer of Parliament provides more assurance of independence from political pressures than the proposed location within a department headed by a minister. As part of a department, the commissioner will be restricted in his freedom to report on investigations and prosecutions.

There are other issues associated with the proposed relocation that are discussed in my brief. I recommend that the relocation of the commissioner function be dropped from the bill. If there is a perception that the commissioner needs more autonomy, this could be provided through amendments requiring structural and procedural separations inside Elections Canada.

My next topic is on adding to the tool kit of enforcement. Changing political practices and new technologies of campaigning require that a broader range of enforcement tools be provided to Elections Canada and the Commissioner of Canada Elections. Whether the commissioner is housed in Elections Canada or in the DPP, the commissioner needs the authority to compel testimony subject to judicial supervision.

In five provinces the CEO or an election commissioner has such power to compel testimony. Currently, most violations of the Canada Elections Act must be treated as criminal matters and processed through the courts. To achieve greater flexibility and fairness in the enforcement process, a broader array of tools should be included in the law.

The U.K. example is instructive. Back in 2009, the election law was amended to provide a range of civil penalties such as monetary penalties, stop notices, enforcement undertakings, and forfeiture orders.

Therefore, I recommend that Bill C-23 be amended to provide authority to the Commissioner of Canada Elections to compel testimony. Also, a non-legislative recommendation is that the procedure and House affairs committee develop, in consultation with Elections Canada, procedures to ensure due process to guide the use of compelled testimony and to develop a plan for a wider range of enforcement mechanisms for the 2019 election.

Turning to the control of election spending, Bill C-23 makes a couple of improvements to the rules on the raising and spending of political money. It imposes sensible restrictions on the use of loans to skirt the limits on donations. It imposes higher fines for overspending.

However, the bill also creates a loophole by exempting from ceilings on spending the costs of electronic communications with past donors for fundraising purposes. It is difficult to imagine that communications for fundraising purposes would not involve appeals for votes and other types of support, and could even include attacks on political opponents.

There is no conceivable way that Elections Canada, with its present authority, could monitor and enforce compliance with this provision. I recommend that the exemption for the cost of fundraising communications be dropped from the bill.

Turning to voter information cards and vouching, the proposal to eliminate VICs and vouching is wrong. No hard evidence of voter fraud has been presented. There are already controls on the use of these devices and more safeguards could be introduced if this were deemed to be necessary. Elimination, however, does not strike the right balance between upholding the constitutional right of Canadians to vote and the highly remote risk of voter impersonation.

Already, more and more election administration activities and campaign finance reporting takes place online. The legislation should anticipate a continuation of this trend, working toward a day when online voting becomes an option. Therefore, I recommend that instead of eliminating VIC and vouching, Bill C-23 should grant authority to Elections Canada to conduct pilot projects with online voter registration and authentication of voter identity with the findings and recommendations being presented to Parliament.

I'll depart a bit from my script, and briefly say that if this committee was looking for a principled compromise to ensure the right balance between accessibility and integrity in the electoral process, they might look to Manitoba. In that province, over the last two elections, a voter who appears at the voting booth with two types of identification, neither of which has an address on it, can still vote, if they sign an oath to the effect that they live within the constituency. It has worked well and there have been no problems. This might be a compromise the minister might consider.

There are two areas where, I think, the bill fails to move election law forward.

Political parties now collect a large amount of personal information about individuals. It's past time that the provisions of privacy laws were extended to political parties. It is also time that political parties developed, with the support of Elections Canada, codes of conduct that will guide the behaviour of their candidates, paid staff, and volunteers. This is more than a symbolic gesture. Codes can help political parties to comply with not just the letter but also the spirit of the election law.

Changes to the Canada Elections Act should not lead to real or perceived advantages for one political party, nor should they put the convenience of political parties ahead of the voting rights of all eligible Canadians. Research in other countries indicates that political attacks on election agencies and partisan involvement with election administration weaken public trust and integrity in the election process.

We have an enviable reputation in this country. Elections Canada is the longest standing independent and impartial election administration body in the world and we want to ensure that we have fair and free elections and they're perceived to be such.

Thank you very much.

[Alexandrine Latendresse, NDP, Louis-Saint-Laurent, QC]

Great.

To wrap up, I would like to go back to what Mr. Lamoureux was saying.

One of the important requests that had been made has to do with the power given to the commissioner to compel testimony. As we know, in the 2011 fraud, that was a major obstacle that prevented the commissioner from doing a proper investigation on what had happened. Do you agree with me that it is unfortunate not to see that aspect in Bill C-23?

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Could you expand upon that?

The debate we're having in Canada on Bill C-23 right now is whether proper ID is required, or whether there should be alternative methods, such as vouching, to allow everyone to exercise their constitutional right.

In your studies have you found there is a direct relationship between the requirement for proper identification and voter turnout, and what would those findings be?

[Dr. Leslie Seidle, Public Policy Consultant and Researcher, As an Individual]

Thank you.

I don't think I can compete with Professor Lee on the humour.

I have quite a lot of experience in this area, including at the Lortie commission on electoral reform 20 years ago, and two years at Elections Canada as the director of research and policy 10 years ago. In light of that, I want to begin my comments on this bill from the perspective of policy development.

I find that on a number of important matters, Bill C-23 proposes major policy changes that are not backed up by solid evidence. By this I mean, what is the nature and extent of the problem that needs to be rectified? I researched the answer to this question by checking the backgrounders on the democratic reform website, ministerial speeches, and other documents. I'm now going to talk about three policy changes to demonstrate the point about the lack of evidence.

First, the bill proposes to abolish the voter education mandate of the Chief Electoral Officer. Members probably know that this responsibility dates from 1993, and to my knowledge no political party has ever called it into question until now. Research has shown that the decline in turnout observed in Canada and most advanced democracies has been particularly sharp among youth. In the early 2000s, concern about this rose and not just among researchers and election administrators, but on February 17, 2004, almost 10 years to a day, the House unanimously adopted a motion, part of which reads as follows:

That the House direct the Chief Electoral Officer and Elections Canada to expand its initiatives to promote the participation of young Canadians in the electoral process, and that these initiatives include making available educational material to schools and other organizations.

When I was at Elections Canada, which coincided with the adoption of that motion, I was pleased to lead the development of the first partnership with the organization that came to be known as Student Vote. We also consulted with a number of aboriginal organizations about ways of encouraging more aboriginal Canadians to exercise the franchise. Since then, a decade ago, the voter education activities of Elections Canada have expanded considerably. In the last election, for example, Student Vote reached over half a million students who participated in mock elections in schools as a voter education program.

This mandate is not unique to Elections Canada. Interestingly, the Australian Electoral Commission, the federal body, has a mandate to educate and inform the community about electoral rights and responsibilities. Similarly in New Zealand, its Electoral Commission has a mandate to promote public awareness of electoral matters by the conduct of education and information programs.

The government's backgrounder on the voter education mandate change describes this move as “back to basics”. Sounds nice, but to me this implies that voter education is not really very important. After all, we should be focusing on the basics, not on these things that are tangential, or perhaps it also implies that this is not a legitimate thing for a public management body in the field of elections to do. I strongly disagree.

Turning to political finance, there are a number of changes in the bill, but one of them is particularly puzzling. I want to highlight it because this is an area we worked on at the Lortie commission. The definition of election expenses was made comprehensive in 2004. Now the government proposes to exempt the costs of fundraising. Once again, the evidence is scanty. I could find none at all in the backgrounder that is subtitled, “Keep Big Money Out of Politics”. Why should this important activity no longer be subject to spending limits, which themselves are being raised through the same bill? I think we can predict difficulties with enforcement. After all, as you're fundraising, you're also promoting your own party or candidate, or possibly opposing the other side, or doing a bit of both. We could see that the commissioner is going to have some difficulty with this down the line. I think it's a potential Trojan Horse. It opens the door to a lot of potential difficulty and confusion.

Finally, on the Commissioner of Canada Elections, I must say it has not been demonstrated that the theoretical argument for separating the administration and the enforcement of elections is a compelling one. In my experience, according to the witnesses who have been before you, the Commissioner of Canada Elections has not been hamstrung in carrying out his duties in an independent manner. The commissioner is not a puppet of the Chief Electoral Officer, even though the commissioner is appointed by the Chief Electoral Officer.

If this bill is adopted, the appointment method will change. Rather than being appointed by an officer of Parliament, the commissioner will be appointed by the Director of Public Prosecutions, an office that was established in 2006 as part of the Accountability Act. In other words, the commissioner will become part of a departmental bureaucracy, more or less at the level of a director general, if I can look at things in the hierarchy and that sort of thing; we haven't seen the salary range and so on, that's not in the bill, of course. The commissioner will be within a departmental bureaucracy, reporting to the Attorney General who is the minister in cabinet responsible for the administration of justice. It's quite a difference in the architecture.

I find it particularly strange that the bill doesn't even allow the commissioner a public reporting role on himself or herself. Rather, it provides that the Director of Public Prosecutions will cover the general work of the commissioner in his or her annual report. So, I'm appointed to an office, I'm the commissioner of Canada elections, and I can't even report on myself. It's the Director of Public Prosecutions who reports on me.

Within a bureaucracy, where often reports are shared, things are nudged, things are nuanced, and so on. You can see the point I'm making about diminished transparency and accountability.

All in all, setting aside some of the increased penalties and that sort of thing, the commissioner's position has been significantly downgraded in the architecture of election administration and enforcement.

Based on my professional and research experience which dates back some 35 years, I would say that in a number of important respects, Bill C-23 is a step back. It is a regressive measure in the evolution of Canada's election law. If adopted in its present form, it can be expected to diminish accessibility to the vote, particularly for youth, because the education and information function will no longer be there, will no longer be part of the basics of election.

The bill could also weaken the fairness principle that lies at the core of the regulation of political finance and election spending that dates back to 1974 and was significantly enhanced under the Chrétien government, and also under the Harper government.

Finally, it will lessen transparency and accountability with regard to the role of the Commissioner of Canada Elections. The bill is flawed in a number of respects and in my view should not proceed unless amended on the matters that I mentioned and some of the other matters that have been pointed out by a number of the witnesses.

We are in the most unusual situation also, I would add, just in closing, of having a bill that is not only dividing political parties sharper than ever before, but has the incumbent Chief Electoral Officer opposed on a number of very major counts. This is unprecedented in the three decades and more during which I've been studying election law. It in itself is, I think, quite a worrying development.

Thank you for your attention.

[The Chair, Conservative, Joe Preston]

Let's get started, committee. We are studying Bill C-23, the fair elections act.

We have three witnesses in this hour.

First we have Jason Mycoff. Do you hear me okay?