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.

[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.

Statements by the Member for Edmonton Centre

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I, too, rise this morning because I am concerned about the statements made by the member for Edmonton Centre on March 24, earlier this week.

That day we were debating Bill C-23, the fair elections act, which is the government's term, when the member for Edmonton Centre, I believe, deliberately intended to mislead the House. I do not say that lightly, because that is a form of contempt of the House.

I would like to refer to a ruling you recently made, Mr. Speaker, dealing with another statement, made by the member for Mississauga—Streetsville.

I will first go to what the member for Mississauga—Streetsville stated and then to your comments, Mr. Speaker, as to why it is important that we be very careful in what we say.

I am going to refer to your ruling from just the other day, if I may, Mr. Speaker. You will recall that on February 6, the member for Mississauga—Streetsville stated:

I have actually witnessed other people picking up the voter cards, going to campaign office of whatever candidate they support and handing out these voter cards to other individuals, who then walk into voting stations with friends who vouch for them with no ID.

Mr. Speaker, you articulated a ruling that many of us in the chamber actually supported, because we believe that you were right in your assessment. This is, in essence, what you stated, Mr. Speaker:

This incident highlights the...importance of accuracy and truthfulness in our deliberations. All members bear a responsibility, individually and collectively, to select the words they use very carefully and to be ever mindful of the serious consequences that can result when this responsibility is forgotten. In calling on the Chair to arrive at the finding of prime facie in this case, the hon. House Leader of the Official Opposition cited my ruling of May 7, 2012, where at page 7650 of the Debates, I reminded the House that, before finding that a member had deliberately misled the House, three conditions had to be met:

Then you stated those three conditions, Mr. Speaker:

...one, it must be proven that the statement was misleading; two, it must be established that the member making the statement knew at the time that the statement was incorrect; and three, that making the statement, the member intended to mislead the House.

I really want to emphasize what we were debating at the time. It was, once again, much like your ruling, on Bill C-23. It is an extremely important piece of legislation, and as you know, Mr. Speaker, it is exceptionally controversial. We have had emotional debates on both sides of the House. However, it is expected that when members participate in a debate, they are not going to try, in any way, to intentionally or deliberately mislead. This is what I believe has happened here.

Let me quote what the member for Edmonton Centre actually stated. Please keep in mind that the debate on that day was all about vouching. The government's position on vouching is that we should not allow vouching. That is what the Conservatives were trying to espouse throughout that day.

Here is what the member stated, and this can be found on page 3778, March 24:

In the 2006 election, I was called personally and offered hundreds of voter cards that had been left in apartment buildings and so on. Like an idiot, I said, “No, we don't do that sort of thing”. I should have said, “Yes, come on down”, and had the police waiting.

It is obvious that the member for Edmonton Centre instantly recognized that something was wrong with that phone call. In hindsight, he felt that it was illegal, because he believed that the police should have been contacted on the matter. To the best of my knowledge, I do not believe that the police were contacted. I hope that the member will address that issue.

More importantly, since this statement, we have found out that the voter cards we are debating today were not being used back in 2006. This comes from Elections Canada. The reason the member was focused on the voter cards was that he was trying to discredit the idea of Canadians being able to be vouched for. That is of critical importance.

On page 65 of Erskine May's Parliamentary Practice, “parliamentary privilege” is defined as:

...the sum of the peculiar rights enjoyed by each House collectively [...] and by Members of each House individually, without which they could not discharge their functions...

I was here on Monday when I heard the member make the statement. There is no doubt in my mind that in making that statement, his intent was to try to give the House the impression that illegal activities were taking place and that vouching was wrong.

If we review some of the statements put forward by the member at the time, they were contradicted by media reports by, for example, the CBC, The Hill Times, and others. They seem to contradict what the member for Edmonton Centre was trying to lead members of the House to believe on March 25. I would suggest that such a review would be appropriate.

I look forward to the member for Edmonton Centre's contribution on this issue. Having said that, Mr. Speaker, I would ask that you find that there are grounds that this is a prima facie contempt of Parliament, at which point I would be prepared to move a motion to have the matter referred to the appropriate committee for further study.

Democratic Reform

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, some time ago, the Chief Electoral Officer formed an advisory board of notable Canadians like Michael Wilson, Preston Manning, and Sheila Fraser.

Given the government's attacks on the CEO, will the Minister of State for Democratic Reform assure Canadians that the Treasury Board would never deny requests under Bill C-23's proposed subsection 20(1) to cover costs associated with engaging these advisors on a temporary basis?

Will the government agree to amend this deeply flawed bill to make that change?

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

Mr. Speaker, one of the things that the government's Bill C-23 will do is increase the annual political contribution limit by 25%, bringing it to $1,500 per person. The other major impact of Bill C-23 will be to exempt from campaign expenses the amounts spent to solicit donations from people who have made contributions in the past.

Can the minister explain where he got those ideas? Can he quote even one independent expert who believes that these measures will strengthen our democracy and reduce the influence of money in politics?

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, the Conservatives' fair elections act is anything but fair. Bill C-23 would turn voters away from the polls. Too few voters is our problem, not too many.

Bill C-23 would do nothing to fix our undemocratic system. It would grant 100% of the power to a party with less than 40% of the vote.

Will the minister fix the real electoral problem and make our electoral system more proportional?

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, as Jean-Pierre Kingsley testified today, the unfair elections act only requires data about potential voter fraud to be retained for one year, one short year. This is made worse by the fact that without the power to compel testimony, witnesses can refuse to co-operate, just as we know that so many Conservatives have done during the 2011 robocall investigation.

Will the government now commit to change this part of Bill C-23?

[Pierre Poilievre, Conservative, Minister of State (Democratic Reform)]

Mr. Speaker, the former chief electoral officer has previously made very positive comments about the fair elections act. Today, he repeated a number of those comments.

In terms of Elections Canada's advertising, two things motivate voters: first, information and, second, inspiration. The information about where, when and how to vote should come from Elections Canada. However, the inspiration should come from the candidates and political parties. That is how we will proceed with the fair elections act.

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

Mr. Speaker, the Minister of State for Democratic Reform is trying to prevent Elections Canada from informing and educating young people and the general public. However, this morning, former chief electoral officer Jean-Pierre Kingsley pointed out that the changes in the Conservatives' electoral “deform” to part 18 of the Elections Act should be completely removed from Bill C-23. His remarks echo those made by the current Chief Electoral Officer, Marc Mayrand.

Does the minister promise to take the advice of experts and delete the proposed changes to part 18 from Bill C-23?

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Switching gears for a moment, you said earlier, Mr. Brock, that being an agent of Parliament, you report to the legislature, which to you is the most important piece of what you call your independence in doing what it is you do and being separate from the executive.

Do you feel that Bill C-23 is a step in the wrong direction in doing what it does? It's not so much about independence, but without the right tools, it's more like isolation. Would I be correct in saying that?

[Keith Archer, Chief Electoral Officer, Elections BC]

I thank the chair and members of this committee for inviting me here this afternoon.

I'm Keith Archer, the Chief Electoral Officer of British Columbia, an appointment I have held since September 2011. Prior to this appointment, I was a professor of political science at the University of Calgary for 27 years.

Bill C-23 contains more provisions than I can address in the short time available to me. Consequently, my comments focus on two themes that go to the heart of some of the key provisions of the bill and which were discussed by the minister responsible in a newspaper article yesterday. They are first, voter identification and accessibility of the ballot, and second, citizen engagement in the electoral process.

Let me start with voter identification and accessibility of the ballot. Because Canada does not maintain a national citizen registry or issue universal national identity cards to all citizens, the federal jurisdiction and many provinces have adopted some variant of the same framework to provide proof of identity and current residential address for voting. That is a type one document, which is a government issued identity document with photograph, name, and residential address; or two type two documents, one of which has the person's name and one of which has the name and residential address; or a type three process as a fail-safe mechanism, which is the use of vouching.

Bill C-23 makes it more difficult to satisfy voter identification requirements by removing the voter information card from the list of approved type two documents and by eliminating vouching, the fail-safe method. I would encourage a rethinking of both these changes.

Only about 85% of Canadians possess a type one identity document, such as a driver's licence. For those 18 or 19 years of age, it's about 60% and falling. For those over 65, it's about 70%.

Type two documents are necessary to ensure that the millions of other eligible voters who don't have a current driver's licence can still exercise their section 3 charter right to vote. The list of type two documents that are approved is quite extensive. The independent non-partisan election administration agency approves type two documents usually following extensive discussions with various service providers to ensure that classes of voters are not administratively excluded from voting. We recognize that these documents considered individually are imperfect. Requiring that voters produce two such documents increases one's confidence that they establish that the voter is who he purports to be. This is added to other checks in the system such as having voting taking place in a public space, providing candidates the opportunity to scrutinize the voting process and to challenge voters on their right to be registered and to vote, hiring election officials from their local communities, and levying substantial penalties for voter impersonation.

The type two identification requirements strike a balance between proof of identity with certainty while ensuring an accessible ballot. The only document on the type two list controlled by the election agency is the voter information card, or in the case of British Columbia, the where to vote card. As we focus our efforts on continually improving the quality of the voters list, we continue to improve the quality of the VIC or the where to vote card.

The other identification issue in Bill C-23 is the removal of the vouching procedure.

In the 2013 general election in British Columbia, vouching was used by about 14,000 voters. It was just under 1% of all votes cast that were by voters who were vouched for.

Our analysis reveals that vouching is more common in rural districts and in mixed urban-rural districts. There is no doubt that vouching adds complexity to the voting process in B.C., and since the election official overseeing this process only receives three hours of training on all aspects of voting administration, we recognize there may be minor administrative errors in completing this process.

However, let's not confuse minor administrative errors, such as a voter not signing a vouching form in the right place, with election fraud. An analysis of administrative errors in vouching in B.C.'s 2013 election showed that fewer than 1,000 such minor errors occurred among the 1.8 million votes cast, and there was no indication of election fraud in any of these cases. Simplifying vouching procedures can dramatically reduce error rates.

The bottom line to vouching is this. Vouching allows tens of thousands of voters in B.C. and hundreds of thousands of voters in federal elections to exercise the franchise for which their citizenship entitles them. There is no evidence which I am aware of that links vouching provisions in Canadian elections with voter fraud, and there are many safeguards in place to ensure this is the case.

Let me talk briefly about citizen engagement. The last point I wish to make concerns citizen engagement in Canada's electoral process. In British Columbia, Elections BC is the province's window into the world of election administration. We are the people who are engaged to think about these issues every day of the year, to understand current research, trends, and best practices in other jurisdictions, and to ensure that expertise benefits our citizens and provides the best advice possible for policy-makers.

We have a particular role to play in removing barriers to participation so that all eligible electors can exercise their franchise. At times this could mean focusing extra efforts on citizens who face more substantial barriers than their neighbours. The right to vote is not diminished because a citizen is young, or a new Canadian, or because they have recently moved and their identity documents have not been updated.

It also means that we have a role to play in fostering public discussion about electoral matters. I was very pleased recently to head a panel in British Columbia that issued a report to the legislative assembly regarding the issue of Internet voting. We've benefited considerably from the previous work of our colleagues at Elections Ontario and Elections Canada. We also recently collaborated with the Centre for the Study of Democratic Institutions, at UBC, on a conference on the 2013 B.C. election.

All of that is to say there are a number of groups that have an interest in fostering the democratic process: political parties and candidates, civil society organizations, scholars, activists, and not least of all, election administration agencies. Indeed, our election administration agencies in Canada are the only group specifically designed to take an independent non-partisan approach to citizen engagement.

I would encourage the committee to reconsider limiting the role of Canada's independent election agency from this important work. Elections Canada's current and past work stands as an international exemplar of election administration best practice.

With that, Mr. Chairman, I'm happy to turn the floor back to you.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I respect the plea, and I hope we won't get rid of it. Hopefully that will be an amendment.

On it you also indicate, and I am quoting you directly, “Let me be clear: absent the rescinding of the proposed section 18 in Bill C-23, Canadians will lose their trust and their confidence in our elections.” You are stating that this is not acceptable. What is it that you're referring to? This is the Chief Electoral Officer's ability to communicate with the public without limitations. Obviously you're really concerned about this.

You conclude by saying that with these changes to Bill C-23, there is potential....

Are you saying that if the government does not make the types of changes we've just made reference to, this is a bill that really should not be passed by the House of Commons?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Kingsley, welcome to the committee.

I have a number of questions that I would like to get on the record.

Let's go back to the ability to compel. You state, “Bill C-23 would certainly provide longer reach and sharper teeth”—an interesting choice of wording, I thought—“should the authority to compel testimony be granted to the Commissioner of Canada Elections...”.

Without the authority to compel a witness, we would argue that the legislation, when a violation has occurred, in fact, is going to get weaker, because those individuals.... Now it's becoming even that much better known that if you don't want to say anything to Elections Canada, you don't have to say anything to Elections Canada. Many independent election authorities today across Canada already have that authority, so in the past we were saying that in fact this should have been brought in, in the form of a change, to allow Elections Canada to compel a witness.

Could we have a clear statement from you: do you not concur that having the ability to compel a witness would in fact directly help in getting prosecutions for things such as the robocalls?

[Jean-Pierre Kingsley, Former Chief Electoral Officer, As an Individual]

Thank you, Mr. Chair.

I would like to thank the clerk as well as the translators for the translation of the text you are about to receive.

Good morning, also, to all of the members of the committee.

I would also like to thank two people who shall remain nameless, who are good friends and colleagues who have worked days on end to help me prepare for this appearance.

Honourable members of the committee, it is always a privilege to appear before you. I am here today to speak to Bill C-23.

I followed the appearance of Mr. Mayrand on CPAC and I agree with his testimony. Canada's electoral democracy and our electoral agency, Elections Canada, stand second to none throughout the world because our elections enjoy the confidence of Canadians. They are built upon five values: participation, fairness, impartiality, transparency and accountability. I have evaluated the bill from their perspective.

A number of the proposed changes in the bill will sustain the values underlying the act.

The provisions respecting voter contact calling services will help avoid the repetition of the infamous robocalls during the 2011 election, or help trace them by providing an information trail for investigators.

On that, the committee should consider extending the requirements respecting the retention of records so that they mirror the time limitation for prosecutions. Moreover the records should include the phone numbers of persons contacted in order to maximize their usefulness to investigators. This latter information would not become public and would be accessible only for investigative and prosecution purposes.

The significant increase in potential fines for conviction of breaches of the act up to $100,000 for some offences, along with the potential for jail time, will help enhance deterrence significantly.

The graduated and significant reduction of the reimbursement of campaign expenditures will apply automatically in all cases where the spending limits are breached.

The provision of a fourth day for advance polls will benefit electors who increasingly vote in advance of polling day — a number in excess of two millions Canadians in the 2011 election.

The reformed legislated schemes for loans and unpaid claims will help ensure that rules concerning contributions are respected.

The Advisory Committee of Political Parties will be established in law. This committee has operated since 1977 and has proven an invaluable mechanism for exchanges between Elections Canada and all the registered parties, including the smaller ones, that often have a very different take on issues.

And lastly, the new statutory provisions respecting interpretations and advance rulings by Elections Canada will benefit participants and the public, albeit the time requirements imposed on Elections Canada will have to be adjusted to be workable.

There are also a number of major changes that are relatively neutral in their effect.

One is the decision to move the Commissioner of Canada Elections from the Office of the Chief Electoral Officer to that of the Director of Public Prosecutions.

This move constitutes an extension of the decision Parliament made in 2006 with the Accountability Act to transfer the authority for the prosecution of offences under the Canada Elections Act from the Commissioner of Canada Elections to the Director of Public Prosecutions. Parliament fixed a problem that did not exist. It bears repeating, Mr. Chairman, that as a result of that decision it has been the Director of Public Prosecutions, not the Commissioner of Canada Elections, and not the Chief Electoral Officer, who has decided when to prosecute under the act since that time. The commissioner serves only an investigative and advisory role in that process. It has always been the courts that have determined guilt, not the Chief Electoral Officer, not the commissioner, and not the Director of Public Prosecutions. In the performance of his investigative functions, the commissioner has always operated independently of the Chief Electoral Officer and will continue to act independently of the Director of Public Prosecutions with the protections afforded those operations in this bill and in the Director of Public Prosecutions Act. What is lost is the simplicity of the previous enforcement regime, its cost-effectiveness, and the timeliness of prosecutions.

The increase in spending and contribution limits is another one.

Under the bill, spending limits will increase by 5% and contribution limits will increase by 25%. As well, individuals will be able to donate more of their own money to their candidate and nomination campaigns. This should increase their ability to meet their start-up obligations, reducing their reliance on loans without seriously impacting the overall role of money in the process.

There are aspects of the bill that will benefit from further consideration. Several changes are essential.

The proposed exemption from a registered party's election expenses of those related to party funding communications with persons who have donated more than $20 over the preceding five years to emanations of the party is not justified. It is simply not possible to seek funds without including reasons for giving, and this can only constitute advertising for or against a party or a candidate. Moreover, it favours richer and established parties to the detriment of small and especially newer parties.

Nor will it save taxpayers any money. The established parties will continue to spend very close to the newly increased spending limits and will be reimbursed accordingly. The only way to reduce the amount of the reimbursement is to reduce the election expense limits.

Respecting registered party returns, your committee should consider vesting in law the authority of the Chief Electoral Officer to access and inspect relevant documents supporting the information on party returns when relevant. This recommendation has been before your committee previously as part of the report on the 38th general election, and it was included in Parliament's unanimous resolution of March 2012 in the wake of the robocalls scandal.

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 when he investigates breaches of the Canada Elections Act, as agreed as well in the 2012 unanimous resolution.

The need for this authority, which is possessed by most of the electoral authorities in Canada and by many other federal agencies, is demonstrated by the apparent lack of progress in the robocalls investigation. Persons in positions likely to be able to provide important information now know they can refuse to talk to investigators. Their lawyers know. I would note in passing that this authority could only be exercised once approval is granted by a court upon application by the commissioner.

I would now like to address two vital matters that must be changed to maintain fundamental values of our electoral democracy. As they stand, these provisions will impact very negatively on the values of participation, impartiality, and transparency.

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. Strict measures surround the vouching process under the act allowing those electors who present themselves at their designated poll without the requisite documentary proof of ID and/or proof of address to establish them through another elector from the same poll who has already provided the required documentary proof to the satisfaction of the electoral officials.

The voucher takes an oath that the voucher knows the person to be vouched for and his or her address. The person being vouched for similarly takes an oath. One can only vouch for another once and a vouchee cannot vouch for someone else. In practice, in many cases vouching is employed in circumstances where there is no risk. In the majority of the cases, vouchers are related to the person for whom they are vouching and the person being vouched for may already be on the list of electors.

Moreover, Mr. Chairman, vouching is often used where proof of ID is provided and proof of address is lacking. For example, vouching occurs on reserves, which are defined territorially, and where the person being vouched for already possesses a status Indian card, acceptable proof under the Canada Elections Act. Each reserve usually constitutes one or more polls, and consequently the possession of such a card should constitute sufficient proof of address. It does not; hence the need for the vouching process.

Similarly, in the cases of students, poll officials obtain certifications by university housing authorities concerning those who reside in their residences. Again, this does not constitute sufficient proof of address. A large number of vouching cases take place in institutional residences where Elections Canada send revising agents as part of the targeted revision process during the election and determine who the residents are. Virtually all these facilities are designated mobile polls, when they don’t already constitute a regular poll, thus amounting to a totally controlled environment where the required proofs are already in the hands of election officials.

Mr. Chairman, the errors identified with the vouching process earlier in this committee have been administrative in nature, owing to failings of poll officials rather than being indicative of fraudulent voting. The resolution of this administrative problem lies in the simplification of processes, the rigorous application of the requirements by electoral officials, and the reinforcement of their obligations during their training.

I note the bill currently proposes to add greater certainty in circumstances where it appears at a poll that an elector's name has been crossed off the list in error, or it is purported that someone else has voted under that person's name. In such circumstances, the Canada Elections Act requires that the elector take an oath before being permitted to vote. The bill proposes to amend these requirements so that the elector will now be required to take the required oath in writing.

Amending the vouching provisions to require that the requisite oath also be given in writing will address the concerns which have been raised respecting vouching. There is a fundamental inequity when a federal statute requires documentary proof of identity and address before one can exercise a constitutional right, and no federal agency provides such proof in one readily available form.

Also, I wish to address Bill C-23's amendment to section 18 dealing with the Chief Electoral Officer's ability to communicate with the public, limiting it to four basic voting elements: who, when, where, and how, touching candidates as well.

The Chief Electoral Officer must retain the authority to reach out to all Canadians, to speak to them about our electoral democracy, the importance of our constitutional right to vote, and the methods and the values at the core of our electoral system. He speaks without regard to partisanship. Candidates and parties do so typically in a partisan manner with the legitimate purpose of obtaining their vote, which is not a problem.

The Chief Electoral Officer must be able to sustain important endeavours by academia such as the Canada election study, and by NGOs such as Student Vote and Apathy Is Boring. In total disclosure, I chair the latter's advisory council. We have a major problem of participation in our elections. Less than 40% of young people between 18 and 24 actually vote in this country right now.

The Chief Electoral Officer must retain the authority to provide the information requested by the media, and to share any information he deems pertinent with Canadians at any time. His overarching concern is the integrity of our electoral system. Any concern by a political party can be raised at the proposed advisory committee of political parties for consultation. It can also be raised at this very committee at any time.

Let me be clear. Absent the rescinding of the proposed section 18 in Bill C-23, Canadians will lose their trust and their confidence in our elections. That is not acceptable.

With these changes as proposed, Bill C-23 has the potential to maintain our electoral process and Elections Canada second to none in the world.

Thank you, Mr. Chairman.

Opposition Motion—Proposed Changes to the Elections Act

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, it is a great pleasure to rise here this evening and support the motion the member for Toronto—Danforth has put forward, and I would like to thank him for his work on this file. He has done a tremendous job not just on this issue but on all the issues he is handling regarding democracy in this country.

I would just remind you, Mr. Speaker, that I will be splitting my time with the member for Notre-Dame-de-Grâce—Lachine.

Democratic reform and protecting democracy in Canada are issues that are very close to my heart. I have studied and worked on this topic for 20 years, both as a student and as a professor. There are many concerns we have with the so-called fair elections act that has been put forward by the government, and this motion directly calls for its rejection. It is really worth reading the motion in detail, because it sums up our problems. It says:

That, in the opinion of the House, proposed changes to the Elections Act that would prohibit vouching, voter education programming by Elections Canada, and the use of voter cards as identification could disenfranchise many Canadians, particularly first-time voters like youth and new Canadians, Aboriginal Canadians and seniors living in residence, and should be abandoned.

This really sums up what will be the crux of my speech and the concerns many Canadians have, regular Canadians but also those who have, as I have, spent their lives studying this issue. In fact, I hope to show in this short speech that the Conservative proposals are not in the best interests of Canadians and that our motion should be passed.

Canada has long been seen as one of the most democratic countries in the world. Indeed, Elections Canada is consulted internationally so that other countries can learn how we do things here. The way we conduct our elections is the gold standard of how elections are conducted around the world and is something we should be proud of. However, I look now at how our democracy is performing overall, and I wonder if we have not hit a bit of a peak or have even passed our peak.

Voter turnout has been on a slow decline since the 1980s, and what is worse, we are creating cycles of non-voting. Citizens, for example, no longer join political parties. Less than two per cent of the citizenry is active in political parties. Once held in high regard, politicians are now loathed by the public, and in fact, both provincial and federal legislatures do not reflect the populations they represent. We could go on and on about where things used to be better and are declining.

I want to focus my remarks on voter turnout and use this to show why the Conservatives' proposed act is not only wrong in detail but is wrong in spirit and in the process by which it would be implemented.

In the 1960s, almost 80% of those eligible to cast votes did so. In the 2011 election, voter turnout dropped to just over 60%, a decline of 20 percentage points. This is not a one-off decline. It is not a dip in voter turnout. This is really a pattern. Turnout has not been higher than 65% in this country any time in this century. It has declined, and we are entering a period of further decline. That is why I am saying again that I think democracy has perhaps peaked in Canada.

The reasons for the decline in turnout are many, but some have to do with declining government investment in efforts to help get people to the polls. The Conservative proposals not only would take money away, for example, for door-to-door registration but would actually add additional barriers to participation. Why I say that this violates the spirit of what we try to do here in Canada is that it is going to make our low turnout problem even worse.

This is a very serious situation from two perspectives. First, many would agree that high voter turnout is in itself a good thing, and low voter turnout, in turn, is a bad thing. Second, and perhaps more serious, is that disengagement can undermine the legitimacy of the government, and in the extreme case, lead to instability. The low levels of turnout we now have will only get worse, especially if the Conservatives force this bill through Parliament.

It is worth noting the kind of cycle we are having of low voter turnout. Of those eligible to vote for the first time in 1965, almost 70% voted. By 2008, the turnout of voters who were first eligible to vote in 1965 had increased to 75%.

If we look at first-time voters in the year 2000, of those eligible to vote in 2004, only 34% voted. By the 2008 election, this group was still stuck at 34%.

What we are getting is a cycle of non-voting. Of those born in the sixties, 70% voted and have continued to vote in those numbers as we moved forward through elections. Of those born in the 20th century, one-third are voting, and they are stuck with one-third voting.

This is the cycle of non-voting of which political scientists speak. It is something we have to work to fix rather than what this Conservative bill proposes to do, which will make things worse.

Turnouts are low and dropping, non-voters are continuing to be non-voters, and there are more groups that are permanently disenfranchised from our voting system.

It is important not to take my word for it. Recently, over 150 political scientists wrote an open letter to the government on this matter. It is worth repeating what they had to say. These 150 professors are the cream of the crop as far as political scientists go in Canada. They are mostly chairs and full professors as well as people who all parties in the House have called upon to serve on boundary review committees, to head up royal commissions, and to advise on any matters to do with democracy. It is a multi-partisan group, one that some parties would favour and others would not favour. It is the grand collection of political scientists.

In their open letter to the Prime Minister and the Parliament of Canada, they said that if Bill C-23 was passed, it “would damage the institution at the heart of the country's democracy: voting in federal elections”.

Further, these 150 political scientists urged the government to heed the call for wider consultation in vetting the bill.

This is another problem with what is happening here in terms of the spirit of democratic reform. In the past, any changes to elections would be done in a non-partisan or multi-partisan way. Not only would we consult Elections Canada and experts around the country and perhaps outside the country, we would definitely be consulting the Canadian public. This has been abandoned with Bill C-23. We have had closure on debate, and this bill is being rammed through without any real discussion and without discussion with Elections Canada, which seems absurd, since that is the institution at the centre of this legislation.

These 150 political scientists are urging the government to consult more widely. While they agree, and we have heard today, that there are some things that could be looked at with our electoral system, they are worried about the serious damage that will occur with the passing of Bill C-23.

It is worth noting who these folks are, the drafters of this open letter, which can be seen in many publications, such as the National Post or The Globe and Mail. Professors Deveaux, Williams, Cameron, Dawood, Lenard, and Fuji Johnson are the main drafters. However, this letter has also been signed by 16 past-presidents of the Canadian Political Science Association: Caroline Andrew, Michael Atkinson, Keith Banting, Sylvia Bashevkin, André Blais, Kenneth Carty, John Courtney, Elisabeth Gidengil, Richard Johnston, Peter Russell, Grace Skogstad, David Smith, Miriam Smith, Reeta Tremblay, Graham White, and Robert Young.

If we put all of these signatories together in a room, I would hazard a guess that we could solve any political science problem we have in this country. Of course, none of these people have been consulted on this bill. It is outrageous that these changes are going ahead and are being forced through Parliament without any consultation at all and without any expert advice. It has been drafted in a back room. It is something that would advantage one party over other parties, and it violates the spirit of what we have done here in the past. That is why I support the opposition day motion that has been put forward today.

I call upon the government to drop Bill C-23. Let us go back to the drawing board and consult with experts and regular Canadians to figure out how to make democracy better and how to improve our falling voter turnout.

[Kennedy Stewart, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I was very interested in my colleague's speech. By the sound of things, maybe the whole 2011 election should have been null and void, if that kind of fraud or potential mistakes were happening all across the country.

Of course, we know that is not the case. We know that Elections Canada does great work and that we are the gold standard of conducting elections in Canada and around the world.

Instead of looking at anecdotal information, perhaps we should look at what 150 political science professors across Canada have been saying about the Conservatives' proposed act and why we should be voting yes to the motion we have put forward today. These professors are saying, and many of them have been on boundaries commissions or royal commissions, that, if passed, Bill C-23 would damage the institution at the heart of our country's democracy: voting in federal elections.

Instead of drilling down to minutia on a couple of cards that were problematic, perhaps my colleague could say why he disagrees with the top political science minds in the country.