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.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much.

I'd like to go back to the idea that there could very well have been many precedents that are very similar to this that wouldn't have come to your attention because they were never raised as precedents in Parliament.

One example that I would like to point out is on the so-called Fair Elections Act, Bill C-23. I'm looking here at an article by Stephen Maher on February 2, which was two days before that bill was tabled in the House. To go back to Mr. Schmale's point, in the first sentence it says the Conservative government will introduce changes. Then, three paragraphs down “Conservative sources”; another one says it promised the government will “close loopholes to big money, and give law enforcement sharper teeth, a longer reach and a freer hand”. Then it goes on to say, “The bill would remove the Commissioner of Elections Canada, where the investigators work, from Elections Canada and set it up as a separate office, sources say.”

Would this not be considered very similar to the issue we're dealing with? But there was never any point of privilege raised in the House, because perhaps this is considered normal and expected when you're dealing with legislation.

[Marc Mayrand]

In 2010 with Bill C-23—

[Murray Rankin, NDP, Victoria, BC]

Right. Thank you.

I have to change the topic because of the short amount of time I have.

In October 2014, the so-called Fair Elections Act transferred the office of the commissioner of Canada Elections from Elections Canada to the office of the DPP. In the 2016-17 estimates, do they provide for increased resources as a result of the transfer? How has that transfer of jurisdiction affected your office, if at all?

Digital Privacy Act

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I am pleased today to speak to the very important Bill S-4. It concerns the sharing of personal information in the digital age. It deals mainly with the way in which we legislate against companies responsible for the loss or sharing of information. We know this is a very sensitive issue because we are in the digital age where more and more personal information is found online. We think first of banking information, and also of information that sometimes seems not that important, but that is nevertheless part of peoples' private lives. It is information that we share on social networks, such as photos.

This covers all kinds of of complex issues, such as copyright, that we have addressed in the House since the last election, and the dissemination of information pertaining to national security. We had an important debate on this issue during the debate on Bill C-51. We learned that information technology companies, or startups, had concerns about some of the bill's provisions.

Of course, we are all familiar with the infamous story of Bill C-30, where the minister of public safety and emergency preparedness at the time told us that we stood either with the government or with child pornographers. This example shows just how big an issue we are dealing with and the Conservatives' poor record in this regard.

First, I would like to mention something very important and very simple: the obligation to review the privacy legislation every five years. Obviously, this is very important given how quickly technology changes. Unfortunately, such a review has not been implemented. A number of bills were introduced in this regard, but they died on the order paper when the Prime Minister prorogued Parliament. There was, of course, Bill C-30, which is a whole other story, and there was also the bill introduced by my colleague from Terrebonne—Blainville. That bill, which the government refused to support, sought to implement a robust privacy review process, give more power to the Privacy Commissioner and have clearer legislative provisions.

Bill S-4 includes similar provisions. However, they do not go far enough and there are still worrisome loopholes. One of the grey areas that I am particularly concerned about has to do with organizations, such as banks, that could share private information. These organizations are required to report a loss of personal information to the Privacy Commissioner only “if it is reasonable in the circumstances to believe that the breach creates a real risk of significant harm to an individual”. That may seem clear, but when it comes to legislative measures, we can see that there is a lot of leeway in how this provision of the bill is worded. The company could decide that no one's privacy was really violated and that there was no risk of harm to the individual and simply not report the privacy breach.

One of the flaws in this bill is the requirement for a court warrant, which my colleague from Terrebonne—Blainville brought up earlier and which she included in her bill. The Supreme Court recently ruled that any invasion of privacy by the government and any request that the government makes to a private company that is in possession of our information require a mandate. There is no such requirement in this bill, which is extremely worrisome. That is why I made the link earlier to Bill C-51 and the debate on Bill C-30, which did not end up taking place because we managed to get the government to back down. The government seems to be on the wrong track and does not seem to take privacy seriously.

Its record is a great example of that. How many times does the House need to hear criticisms about mismanagement at the Canada Revenue Agency, for example, during question period or at every possible opportunity, whether it is when bills are introduced and petitions are presented or at press conferences?

This department is in possession of the most sensitive information on Canadians, such as their social insurance numbers and their tax information. The department has been the victim of data breaches, and the government does not seem to be taking any responsibility. That makes it hard for us to trust that the government will require private companies to comply with high privacy standards when it is not capable of doing so itself. This situation is extremely worrisome.

We know that this is a complex issue because more and more things are done online. As far as matters of national security are concerned, we know that as legislators we have work to do. We wanted to propose amendments to ensure that this bill went further and complied with the Supreme Court decision. Like a number of witnesses in committee, we question the constitutionality of this bill in its current form.

If I am not mistaken, the 18 amendments the NDP proposed were all rejected. True to form, the Conservatives did not listen to any of the testimony or pay any regard to the amendments proposed by all the parties. The amendments proposed by the NDP were all based on what the public had to say and on the very hard work of my colleague from Terrebonne—Blainville, who was trying to get suitable provisions for 2015, not 2000. Technology changes and so does our reality, and we have to adjust accordingly.

In this context, there are a number of troubling aspects. First, this bill was introduced in the Senate, which, naturally, we criticize every chance we get. The Minister of Industry made an announcement about how he wants to proceed in the digital age, but instead of introducing this bill in the House himself, he introduced it in the Senate. That is one problem.

The second problem is that the Conservatives wanted to skip second reading and send the bill straight to committee. That is not a bad idea in and of itself. The NDP has asked for the same in order to study certain extremely complex files.

For example, we asked to take this approach for Bill C-23, which we called the “electoral deform” bill. Since the government wanted to go straight to committee, we thought it was willing to accept amendments and listen to witnesses, but that did not happen.

The third problem concerns another of the government's bad habits: the honour of the 97th time allocation motion was bestowed on Bill S-4 in order to limit debate. Unfortunately, at this rate, the Conservatives will have moved 100 such motions by the time the election is held. To be blunt, that is pretty shabby.

Although it is important to protect Canadians' privacy and to do what it takes, in 2015, to implement an approach appropriate for the digital age, recent Supreme Court decisions have cast doubt on the constitutionality of this bill.

This bill does not go far enough, and since the government wants to limit debate and does not accept the amendments and the work done in committee, we cannot and will not support this bill. I am very pleased to rise in the House to say that.

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

Thank you, Madam Chair.

I want to thank our guests in British Columbia, and here as well, for joining us.

This issue about provisional voting came up the last time. I think the concept is being put out there as a way of encouraging voting, but my opinion is that we're overlooking the obvious every time we bring up provisional voting. In other words, it may be a solution to some people in certain cases, but if you restore the international permanent list, it goes much further.

With provisional voting, as my colleague from Cape Breton would point out, all we're doing is moving the house in order to tighten up the clothesline. What we should be doing is saying that the international list should be created permanently. As Mr. Biggar pointed out, we want low barriers, high motivation.

I'm going to start with Mr. Biggar on this one. Obviously the high motivation is in your domain, given Leadnow and what it does to get people to vote. However, the lower barriers issue, which you pointed out in the beginning, is becoming very uncertain. We can no longer use the voter information card with Bill C-23.

I would assume—yes or no, Mr. Biggar—about the international list on a permanent basis....

[Josh Paterson, Executive Director, British Columbia Civil Liberties Association]

Thank you very much, Madam Chair, and thank you to the committee for the invitation to appear.

The British Columbia Civil Liberties Association is a non-profit, non-partisan group whose objectives are to promote, defend, sustain, and extend human rights and civil liberties in Canada. We have a long history of defending voting rights and the principle of voter equality. For example, we were an intervener in the Frank case at the Court of Appeal for Ontario, and have applied to intervene in the current challenge to certain provisions of the Fair Elections Act.

One critical case that we brought was Dixon versus the Attorney General of B.C., in 1989. In that decision, the court held that to give some voters less weight than others ran counter to the charter principles of equality and democratic governance. At the time, it was Chief Justice of the B.C. Supreme Court Beverley McLachlin who wrote in her opinion that “the right to vote and participate in the democratic election of one's government is one of the most fundamental of the Charter rights. For without the right to vote in free and fair elections all other rights would be in jeopardy.”

We believe this bill will jeopardize this right. It will place undue impediments on the right of Canadians living abroad to vote in federal elections, and we believe it will be found to be unconstitutional as a result. While the Frank decision sets the stage for maximizing citizens' ability to participate in our democracy and recognizes and extends the constitutional right to vote, this bill has the effect of limiting that right and limiting the participation of Canadians abroad in their own governance.

If Parliament is determined to legislate beyond a simple deletion of the inoperative provisions from Frank, we have no objection to the requirement that an individual prove they're a Canadian or that they establish their place of last residence. We do, however, share with the Chief Electoral Officer and other witnesses the concern that the requirement to register only once an election has been called is likely to disenfranchise some voters. For many voters like Dr. Woo, who testified last week, there simply may not be enough time.

We also believe the requirements to constantly re-prove one's last residence in Canada are unduly onerous. As far as we can tell from reviewing the evidence in these proceedings, no hard evidence has been provided as to why these steps are necessary. If an individual has proved their last residence in Canada once, why can that proof not stand until they return to Canada? Their last residence, as we've heard, cannot change once it has been established. We see no reason that any of this should only be done as well once the writ has been dropped.

As the committee has heard from no less than the Chief Electoral Officer, it is highly likely that people will not be able to complete this multi-step process in time—applying for a ballot, proving their last residency, waiting for the assessment, having the ballot mailed, and mailing it back. Resident Canadians don't need to do this. For example, 84% of tax filers provide their address to Elections Canada using their tax filings and keep themselves constantly updated in that way. We see no reason that non-resident Canadians, whose last address in Canada is fixed and immoveable, need to re-prove that location at each election.

We also object to the one voucher per voter rule, whether for resident or non-resident voters. You can easily foresee a situation in which a Canadian family, with several members who have long lived abroad but who don't have acceptable proof of their last residence in Canada, might have difficulty locating and reaching vouchers for each of the family members. Maybe you're still in contact with an old neighbour, who, lucky thing, still lives in the riding, but what if there's only one person left in that family living in the riding? What if there's not enough of them to vouch for the members of your family?

This is senseless. While we're pleased that the vouching has been expanded from the totally baseless requirement that the voucher live in the same polling division, we question the riding restriction, too. Why is this sworn and declared word of a voucher less worthy if they literally live down the street in Kitchener Centre, but you lived in Kitchener—Waterloo, and your kids went to the same school? Or what if they got transferred to Kitchener Centre in the recent redistribution? You used to live in the same riding and now you don't. We don't see why that should matter.

There can be no question for us that this act on its face places a barrier in the way of Canadians abroad exercising their constitutional right to vote, and the case law is clear. When legislation interferes with the capacity of citizens to play a meaningful role in the electoral process, it is inconsistent with section 3 of the charter. It's plain that the combination of all of these measures will make it so that Canadians will have more difficulty in voting from abroad.

Given that there's been a lack of any justification offered for the proposal, it's difficult for us to imagine how the infringement of charter-protected voting rights would be upheld by the courts as a justified infringement.

We urge the committee to take to heart the suggestions that have been made and make changes to this so that people could register earlier, before the election, so they are better able to cast their ballots—or else to reject this bill entirely.

[Pierre Poilievre, Conservative, Minister for Democratic Reform]

Thank you very much, everyone, for having me here today. Before I begin my remarks, I would like to introduce Isabelle Mondou and Natasha Kim, both of whom work in the Privy Council Office. They are exceptional public servants and they know more about all of these subjects than I do. I'm very pleased to have them at the table with me. I feel assured to have them at my side.

Without any further ado, Mr. Chair, it's a pleasure to address the committee on the citizen voting act. The bill will strengthen Canada's democracy by reinforcing the integrity of the special ballot voting system and ensuring fairness for resident and non-resident votes. The citizen voting act proposes to reform the vote by mail procedures set out in divisions 3 and 4 of the special voting rules of the Canada Elections Act.

The last major update to these procedures was back in 1993. The citizen voting act is in keeping with the government's objective to strengthen the integrity of our electoral process. It builds on the rules enacted by the Fair Elections Act in June of 2014, a bill with which I know all of you are deeply familiar.

The citizen voting act proposes six key measures to reform the special voting rules in the Canada Elections Act and proposes objectives of integrity and fairness.

First, the proposed legislation creates a single process for residents and non-residents who vote by special ballot. Special ballot voting procedures applicable to resident and non-resident electors will be harmonized. Non-resident voters will no longer automatically receive a ballot at election time, mitigating the risk that ballots will end up with unintended recipients. The citizen voting act requires that non-resident electors wishing to vote by special ballot must apply for one at each election, just as resident electors do now.

Second, the bill stipulates non-resident electors will only receive a ballot for the address at which they last resided in Canada. Non-resident electors will no longer be allowed to choose the riding in which they wish to vote.

Third, the bill builds on the Fair Elections Act by requiring all electors voting by special ballot, both residents and non-residents, include in the application proof of identity and residence according to the rules that are similar to those set up in the Fair Elections Act. At the moment, proof of residence in Canada is not required for non-residents. This shortcoming will be remedied, and as with other Canadians, proof of prior residence will be required for expatriate voters.

Under the citizen voting act, resident and non-resident electors voting under the special voting rules will have the same three voter identification options available in order to cast their ballots: a government-issued photo identification with name and address; two pieces of identification authorized by the Chief Electoral Officer, one with an address and both with a name; or two pieces of authorized identification with an oath or declaration of residence that is attested to by another properly identified elector from the same riding.

Fourth, the proposed legislation requires that electors voting from outside of Canada provide proof of citizenship. Currently, providing proof of citizenship is required administratively by Elections Canada for non-resident electors. The citizen voting act makes this a legislative requirement, including for resident voters temporarily outside of the country.

Fifth, the citizen voting act extends the special ballot voting procedures to the mandatory post-election audit that was introduced in the Fair Elections Act. As you will recall, we required that the Chief Electoral Officer appoint an auditor to ensure identification rules were administered in the course of a general election. That mandatory audit was to apply to domestic voting. The citizen voting act will see to it that it also applies to those voting from outside of the country. To this end, the Chief Electoral Officer will be required to engage an external auditor to carry it out, and he will also be required to report the results of this audit. The audit will look into election workers' compliance with resident and non-resident special voting procedures after every election.

Finally, the citizen voting act adds a new provision authorizing the Minister of Citizenship and Immigration to provide the Chief Electoral Officer with information such as the name, gender, date of birth, and address of persons who are not Canadian citizens, for the purpose of cross-referencing registrants in the national register of electors. This is to assist in deleting the names of non-residents from the register who are not qualified to vote. This suggestion came to me from the Chief Electoral Officer. He was concerned that there are people on the voter list who are not citizens, and one of the ways that Elections Canada can identify these non-citizens and remove them from the list is by having data on the identity of non-citizens who reside within Canada. So we have agreed to his suggestion and with the passage of this bill, we will permit the immigration minister to provide the Chief Electoral Officer with that data.

Before concluding my remarks to the committee, I would like to report that, following consultations with Elections Canada, and after looking at some of the issues that were raised during the debate in the House of Commons, the government will be proposing seven minor amendments to the citizen voting act.

First, the current bill provides that the Chief Electoral Officer may authorize types of identification issued by, among others, an entity that is “formed in Canada”. This ensures that identification documents must always be Canadian documents and thus reinforces the integrity of the identification procedure. Moreover, foreign-issued identification is likely to be harder to verify, and in some cases, it could be in another language. This requirement raises concerns that it would be difficult to determine whether an entity is Canadian. In particular, it has been argued that it would be difficult for poll officials to make such a determination.

We have noted the concerns and will be proposing to limit the application of this requirement to only electors voting by special ballot under divisions 3 and 4. This means that front-line officials at the polls will not have to evaluate whether a piece of identification was issued by an entity formed in Canada. Rather, this determination will mainly be required when Elections Canada reviews the identification documents provided by electors with their applications for special ballot prior to election day. In other words, it will apply to those voting by mail and those voting outside of the country, but not at the voting booth.

Elections Canada has access to more resources and will have more time than poll officials to assess whether pieces of identification have been issued by a Canadian entity. I believe this amendment will ensure not only that electors voting by special ballot provide Canadian identification to prove their identity and residence, but also that it will be easier for election officials to verify the acceptability of such identification.

Second, another concern that has been raised relates to the requirement in Bill C-50, the citizen voting act, that residents wishing to vote by special ballot using the attestation procedure to prove residency must obtain an attestation from another elector from the same polling division. For those listening who are not familiar with the complexity of local voting, there are electoral districts that each elect one member of Parliament, but within those districts are polling divisions that break down the voting locations where people go to cast their ballots. The reason that the distinction is important is that it is much more difficult to find an attestor who lives in the same polling division or even to know if that voter lives in the same polling division if you are voting from outside of the country and you are resident abroad. This is not a problem when you're actually voting at the polling division location because you're physically there and the person attesting is physically with you, and they would know very well if they are at their appropriate location.

That brings me to the proposed amendment.

Because the requirement would be problematic, we would seek to change the requirement for the fact that the boundaries of the polling divisions are not published by the Elections Canada website until 24 days before the polling day. To facilitate the process, we will propose an amendment to allow non-resident electors voting by special ballot to obtain an attestation from an elector from the same electoral district instead. In other words, anyone living in the same district would be able to act as the attestor for the non-resident voter lacking proof of prior address. They will not have to be from the same polling division. These electors will therefore be able to kick-start the registration process from the day the election is called.

The third amendment that we propose, Mr. Chair, relates also to the attestation process. Bill C-50 currently provides that as part of the attestation, resident and non-resident electors voting by special ballot may sign a declaration to prove their residence instead of taking the oath. Those who attest to the residence of an elector who are abroad may also sign a declaration instead of taking an oath. An amendment will be proposed to clarify that the declarations signed by attestors from abroad will not need to be administered by another person. Signing a declaration will be sufficient to prove or to attest to the residence of an elector. This will simplify the process for electors and attestors abroad.

The fourth proposed amendment relates to the proof of citizenship that electors voting by special ballot would have to provide, if making their application from outside Canada. We will clarify the language to specify that proof of citizenship is required when the ballot is being sent outside of the country rather than to special ballot voters within the country.

The fifth amendment relates to post-election audit. Bill C-50 proposes to extend the audit to include voting by special ballot and to give the auditor access to all documents necessary to perform the audit. A technical amendment will be proposed to ensure that the auditor has access to all documents necessary to perform the audit for voting at the polls as well.

Sixth, an amendment will be tabled to mitigate the risk of a voter identification card being sent to Canadians at an address at which they no longer live, which would increase the risk of such cards falling into the hands of people who are not eligible to vote in our elections. This technical amendment will provide that all non-residents will not receive a voter information card. Under clause 3 of the bill as currently drafted, that exception would apply only to some non-residents.

As amendment number 7, finally, we will propose an amendment for resident electors who vote in person through special ballot initiatives. For example, such initiatives could be held at hospitals, universities, or at remote work locations, as has been done in the past. An amendment will enable those electors, like electors who vote at the polls, to present an original piece of identification, and not only copies, as is currently provided by Bill C-50.

I hope that committee members will support these amendments. I believe they are sensible and that they are consistent with the goal of the bill.

I can just wrap up by highlighting the principle at stake here.

Mr. Chair, we believe that people should provide ID when they vote. This ID should show who they are, where they reside, and in the case of people living abroad, where they used to reside. Those people voting outside of the country should be required to prove that they're Canadian citizens. The Constitution does give every Canadian the right to vote, but that right is predicated on citizenship—explicitly predicated on citizenship—and so too should be the identification requirement for those who are casting a ballot from outside Canada's borders.

Thank you very much.

[Professor Michael Pal, Assistant Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you very much to the committee for having me here to speak on this important bill. I'm a law professor at the University of Ottawa where I teach constitutional law and election law. You're all invited to come and speak to my class, if you'd like, down the road.

I'm going to give you a very different perspective than Professor Lee. You would have thought the law professor would be the one quoting Hobbes and Foucault, but instead I'm going to speak to the constitutionality of Bill C-50, particularly the rules on registration and on voter identification for overseas voters.

In my opinion, and I wish it was otherwise, the bill as currently written is unconstitutional for violating section 3, which is of course the guarantee of the right to vote in the Charter of Rights and Freedoms. It's unconstitutional because it substantially burdens the rights of all citizens, no matter where they live, all Canadian citizens, to be able to cast a ballot.

I would also add that I don't believe Bill C-50 is actually in the spirit of the Frank decision. Frank, of course, struck down the rule preventing those overseas for five years or more from voting, so it actually expanded voting rights.

My fear with Bill C-50 is that the House may inadvertently be doing indirectly what the courts have said it cannot do directly. The House of Commons cannot deprive people, ban them from voting. But if the rules are so onerous as to make it nearly impossible to be able to cast a ballot, then the effect is the same.

The relevant sections here for overseas voters, in particular, that raise a constitutional dimension are those that require individuals to register at each election and only once the writ has been dropped, and then the voter ID requirements from the Fair Elections Act being applied here.

Requiring registration only after the writ is dropped is a recipe for denying the right to vote to Canadian citizens. The timelines are extremely tight and I know there has been some discussion at the committee about Canada Post and how long it takes to go back and forth. Once you factor in applying to register, the approval by Elections Canada, and then sending your ballot in, it can become very difficult to get it in on time. It's not impossible, but we shouldn't have to be lucky to be able to exercise our constitutionally guaranteed right to vote. I fear that is what this bill would do.

I would just draw the committee's attention to the recent British election, which also had extensive postal balloting of hundreds of thousands of people, and an article from The Guardian. It said that 113,000 people applied to vote by post, and overseas voters raised concerns they did not receive their ballots in time. We often look to the United Kingdom as a shining example of democracy and here even through best efforts postal voting can be deeply problematic.

Second, to turn to the ID requirements, the driver's licence is, of course, the document that has both your identification and your residence on it. Of those who live overseas, however, or in the United States but are Canadian citizens, very few will actually have an incentive to keep their driver's licence or documents that prove their identification and residence.

I know the committee has had a discussion in Bill C-23 about ID requirements, so all I would add is that for overseas voters, however onerous the ID requirements are for Canadians living in Canada, for Canadians living abroad they're likely to be even more onerous. Why would you keep all those pieces of ID that you might potentially need in order to vote because you probably don't need them for any other reason?

To turn to the constitutionality explicitly, the courts have consistently expanded the right to vote since we've had the charter. The Sauvé decision granted prisoners the right to vote. Cases have also granted the mentally ill the right to vote. Frank, from the Ontario Superior Court—and we'll see what the court of appeal has to say and then potentially the Supreme Court—was absolutely in that tradition. If one is a citizen, any restriction on the right to vote has to be very clearly justified by the government.

The question here is: what is the justification? I believe, as Professor Pilon said, we don't have good evidence of widespread fraud that would lead us to say we should limit the right to vote of those who are non-residents. I would ask the committee to weigh the very direct and concrete harm that's likely to result for Canadians living outside of the country, making it very difficult for them to vote, versus the relatively abstract goal of trying to prevent fraud.

We all agree preventing fraud and electoral integrity are important, but without evidence that this fraud is actually occurring we are potentially creating a real harm through Bill C-50.

To conclude, I would say the timing of registration is something that could easily be fixed. I know Mr. Kingsley said 30 days. Why not a year or perhaps even longer? You could register at any time potentially in between elections and I think that would be administratively possible.

If attestation as to residence is still going to be required, we should perhaps look at why the person who is attesting for you has to have lived in the same riding as you, because that is potentially artificial restriction that may not mean much on the ground and might restrict the right to vote.

Thank you very much for your time. I look forward to your questions.

[Jean-Pierre Kingsley]

It would go a long way towards solving, in my view, the vouching issue as well. It would reduce the difficulties that have been introduced with the changes under Bill C-23. It's something that Canadians automatically did in the past, and I think they still do. They take the card with them because it has the address of where they go to vote on it. They put it on the fridge, so it became that. It was never issued with that purpose in mind, but they would do it, and we know that because we would get them at the polls.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

First of all, like everybody else, I want to extend my appreciation for your willingness to come to the committee and to offer the truly unique insight you have—at least a unique insight among the living with regard to elections, referendums, and all such things.

I wanted to actually ask, is this quite literally the first time you've publicly advocated the provisional ballot idea? I can't remember. We did Bill C-23. Did you not comment then?

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

The current CEO is very concerned about the coming into force...and the time he has to go about doing this. He's constrained by time, in light of what happened to Bill C-23 as well.

Not only should they have held off on this legislation given the Frank ruling, but should they have held off on this legislation because October 19 is not that far away?

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

Mr. Chair, honourable members, it's a privilege to appear before the committee once again. Thank you.

I believe that I understand the objectives set out in the bill, in light of the court's decision in Frank. I have read the presentation of the Chief Electoral Officer and reviewed members' input, all of which I appreciate.

Consequently, I would like to propose alternatives aimed at achieving the same ends as the bill, all the while unburdening the process in light of the right of Canadians to vote.

The first one would be that a further advantage of the fixed election date would allow the start of the registration process 30 days before the issuance of the writs, therefore allowing reasonable time to process the required documentation and to overcome difficulties, if there are any. In the case of a minority government, the Chief Electoral Officer could initiate the process, and if no election is called within three or four months, let's say, it would have to start again. Registrants would be advised that this had happened.

Second, under Bill C-50, the passport would now be required, as has been the practice until now. That's how people got on the list, essentially. It will serve automatically as proof of ID, as it has your picture and your name. For proof of a last address in Canada, should it coincide with the data in the register of electors, no other proof would have to be required.

Driver's licence data, I remind you, is provided every two or three months for updates to the register, thus making it essentially the same information, and we're asking people to provide proof of a driver's licence amongst one of the documents. If you're already on the register at the address that you're claiming to be your last address, that would be it. If the address differs, the alternatives in the bill will then prevail. You must provide proof of address, as the bill requires. I noted that the register will be purged of non-Canadians, and I think this helps the acceptance of the measure that I've just mentioned.

With respect to the third proposal, the list of those electors would be kept for the subsequent election and not incorporated in the register. Canadians still living abroad would need to reapply, which is what the bill asks for, and would be verified against this list. It would be used by the CEO for registry quality control purposes as well, something that we all aspire to.

I wanted to make a comment as well with respect to military personnel. It's important to remember that they may change their address in Canada annually. That's their right. Spouses and elector dependants do not have that right. Military personnel will receive their voting package automatically. Spouses and dependants will not. They have to reapply one way or the other.

There's a fifth point that I wish to make with respect to proofs of ID and address. A further measure would be to recognize the VIC as proof of address. Another proof of ID would still be required.

I will add as well, as a personal comment, that it is completely incongruent to me that the Canada Elections Act, which is a federal statute, does not recognize the VIC as proof of both when it is the only federally issued document that contains both. A federal law says that you must have these two things, but no federal agency except the Chief Electoral Officer has it, and Parliament says to the Chief Electoral Officer, “You can't use that.”

By the way, my comments are for both proofs, but my recommendation is that it be used as proof of address at this stage, in order to make the recommendation somewhat acceptable. Any resulting confusion with the new terminology on acceptable documents—and I saw the debate on this—should in my view result in a provisional ballot, to be resolved before the official results are announced. We have seven days after polling day for official results.

If a deputy returning officer is not satisfied that the proof of ID or address that's been provided to him is acceptable, he could not reject that elector if the elector said, “I want you to provisionally put that aside and check with the Chief Electoral Officer.” There would not be that many, and therefore, they could be easily controlled after the event.

That also raises, though, the interesting phenomenon of electors not having sufficient ID and proof of address, if we introduce the concept of provisional ballots; and that is that they could vote provisionally, go home and bring the proof that is missing, not having understood what was required when they went to the polls initially and therefore adding to the substitute for vouching, which was introduced in Bill C-23, I think.

Mr. Chairman, those are the comments I had to make with respect to what I considered to be concrete proposals on how to build upon the objectives of the proposed statute and at the same time facilitate this for Canadian electors, and not change the basic tenet, which is that electors living abroad must exercise initiative to get on the list to be approved for that election, and they then must vote. All of that requires initiative beyond what is required here.

Thank you.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you, Mr. Chair.

Thank you, Minister.

My first question is about Bill C-23, which was passed and which transfers the Elections Canada Office of the Commissioner of Canada Elections, responsible for investigations and the management of federal elections, to the office of the Director of Public Prosecutions. However, I believe that the 2015-2016 main estimates do not contain any funds or increases specifically for the management of the Office of the Commissioner of Canada Elections.

I would like to know if a budget is planned for the administration of the office of the Director of Public Prosecutions and if so, what that amount is. I do not know what type of budget he had before, but I would like to know if that has been drastically reduced.

[Marc Mayrand]

The short answer is no. We're just in the process of issuing a revised handbook as a result of changes in Bill C-23. That's in process. We have consulted with political parties, and again, there's been no change there.

[David Christopherson, NDP, Hamilton Centre, ON]

That's problematic for a whole bunch of reasons on your end in terms of time, resources, and the ability to get people in a position such that they can vote. But it also makes it more difficult for people to vote, which takes us right back to some of the problems we had with Bill C-23.

So I want to say to the government right now that on these two issues, unless they have a good explanation of why they're here—I'm going to raise the other issue about voter ID—both of these things look just like the problems we had with Bill C-23. The government is doing whatever they can to put in bureaucratic hoops that make it more difficult for people to vote by virtue of the steps that are involved, so that eventually they'll just say, “Aw, to heck with it.” That's what this looks like.

If we're wrong and I'm impugning the motives of our government, then I'm quite ready to hear quickly from Mr. Lukiwski that this is wrong and that is not the case, but so far it's looking like that to us.

Now, on the other one, voter ID, this was an even bigger issue in Bill C-23. We went through this whole thing. This whole issue of voter ID was part of why we had filibusters. Now it looks as if the government's trying to bring in through the back door with Bill C-50 what they couldn't achieve through the front door in Bill C-23.

My understanding is that the language is pretty clear, and you're very clear in your language, sir, and as an agent of Parliament, you folks are always very careful about words you use. You state in your analysis sheet that:

There will be no way for deputy returning officers or those receiving applications for special ballots to readily ascertain whether an entity is incorporated in or otherwise formed in Canada. The restriction is likely to cause confusion at the polls on the part of election officers, candidates' representatives and voters.

This sounds like the makings of a huge problem. I'm trying to understand—and my sense is that you are too—what it means when the law is now going to say “an entity that is incorporated or formed by...an Act of Parliament” or a provincial legislature “or that is otherwise formed in Canada”. That doesn't make any sense to me. What I'm hearing from you, sir, is that you're not clear on what that means either, or am I missing the point?