Procedure and House Affairs Committee on Sept. 13th, 2007

[The Chair, Conservative, Gary Goodyear]

Ladies and gentlemen, we're going to begin our meeting this morning, so I will ask that cameras be turned off and that people take their seats as appropriate.

I want to remind members that the meeting this morning is being held in public and will be televised.

As most members have noticed, we have changed to a larger room. That was at the request of a number of individuals, so we are in this room. I hope that everybody who needs to be here has found this new room. I suspect they all have.

Ladies and gentlemen, pursuant to Standing Order 108(3)(a), matters relating to the decisions of Elections Canada to allow veiled individuals to vote is the subject of today's meeting.

I would like to start the meeting by thanking Monsieur Mayrand and his team for appearing before the committee today on such short notice. We certainly appreciate that. We note that you have been doing that sort of thing for us for some time. We definitely appreciate that. We all appreciate that it has been a very busy week for Monsieur Mayrand, and we are pleased that you are able to accommodate us here today outside your busy schedule.

Committee members, I would also like to say that at our last meeting the decorum around the table was unacceptable. I will not entertain today personal attacks or rude comments by anyone. We are here for a very specific purpose, and I would request that we act accordingly.

By way of background and in an effort to ensure that the record is crystal clear on this point, I remind members present that on Monday, September 10, this committee, the Standing Committee on Procedure and House Affairs, passed unanimously a motion to have Monsieur Mayrand and his team with us today in his role as Chief Electoral Officer with Elections Canada to respond to concerns expressed by all members of this committee regarding Monsieur Mayrand's recent decision on the issue of veiled voting, as it is an urgent matter, and also to respect the time our clerk and analysts will need to prepare certain documentation, certainly with respect to the pending Quebec by-elections.

Monsieur Mayrand, after your opening statement the committee members will take turns asking a number of questions, following the typical fashion of this committee. We will follow the usual format of rounds of questions.

At this time, you are scheduled before this committee for a one-hour period. In view of the rather short period of time that you are testifying before this committee, I would ask, Monsieur Mayrand, that you restrict any opening remarks that you might have to not more than five or six minutes.

As well, members, I would ask that you ensure that your questions are on the topic for which we have requested Monsieur Mayrand's attention, that being the issue of veiled voting.

I would also remind the members that Monsieur Mayrand will need to be afforded an opportunity to answer your questions and ask that you ensure that your questions are simply not repetitive or too lengthy in their introductions, so that in fact there is time for Monsieur Mayrand to properly answer the question.

Before we begin our first round of questioning, I also wish to take this opportunity to make it clear at the outset that I will not entertain questions that do not deal specifically with the item of veiled voting. I am providing all members with advance warning that I shall direct the witness not to answer any questions on any other topic. Our mandate for this witness is very clear and was very clearly understood when the motion compelling Monsieur Mayrand's attendance was unanimously passed by this committee.

As I look at my colleagues around the room, I trust that every member of this committee before us understands and is in agreement with these ground rules. Please understand that I take my responsibility as chair very seriously, and I adhere to our time restrictions as closely as possible. I fully intend to respect the edict of the current Speaker of the House, wherein Mr. Speaker Milliken, when commenting on the role of committee chairs and members, stated the following:

I am confident that committee Chairs continue to be mindful of their responsibilities to make fair and balanced rulings based on the democratic traditions of this honourable place. Members of committees must also strive to resolve procedural issues in a manner which ensures that the rules are followed and that committee deliberations are balanced and productive for those committees.

Having said all of that, I would welcome Monsieur Mayrand to commence with his opening statement.

[Marc Mayrand, Chief Electoral Officer, Office of the Chief Electoral Officer]

Thank you, Mr. Chairman.

Mr. Chairman, I thank you for giving me this opportunity to meet with you this morning to deal with the question of voter identification and the matter of veiled women who vote.

As you know, since last June the Canada Elections Act offers three options to electors to identify themselves at the polls. These are set out in section 143 of the act.

First, electors can choose to produce one piece of government-issued identification showing three elements: photo, name, and residential address. Only certain pieces of identification issued by provincial or local authorities meet all those requirements, mainly the driver's license.

As I indicated earlier this week, for electors choosing this method the deputy returning officer must, of course, be able to compare their photo with their face. In that case, an elector whose face is covered must remove the covering.

For electors without a piece of government-issued photo identification showing their name and residential address, a second option is to produce two pieces of identification authorized by the Chief Electoral Officer. Both pieces must then contain the elector's name and one of them must also contain his or her residential address. The act does not require that these pieces of identification contain their photo. In this situation, therefore, the person's face is not compared with a photograph.

Nowadays, especially in urban areas, one cannot assume that election officers know the electors who present themselves at the polls. Visual identification is therefore not required.

Third, Parliament has provided that electors without any piece of identification may take an oath and be vouched for by another registered voter who has the required piece of identification. Here again there's no visual comparison required.

Thus, the act provides several ways of voting that do not require the visual identification of electors. The choice of method is up to the individual.

In this regard, allow me to cite the words of the minister who was responsible for the Canada Elections Act in his speech at the second reading of Bill C-31. The minister then said:

The voter ID process in our bill was carefully crafted by the standing committee to provide a balance appropriate to our Canadian system and consistent with our values. The balance is struck between protecting the integrity of the process and ensuring that no one is disentitled to vote by reason of lack of identification.

This balance could not have been attained if all electors had been required to identify themselves with photo identification. The Act therefore provided for other means of identification that do not require visual recognition. The choice is up to the elector.

You will recall that when this matter was debated, mention was made of the implications of the new identification process for different population groups, whether young people, Aboriginals, seniors, seasonal workers or the homeless, all of whom are less likely to have photo identification.

Finally, apart from these three options, electors can also vote by mail. By definition, this special procedure precludes visual contact between electors and election staff. As I noted earlier this week, more than 80,000 electors voted by mail in the 2006 general election. I would point out that the federal voter identification regime has become the most restrictive regime in Canada. To my knowledge, no provincial legislation requires visual voter recognition.

Some people, recognizing that the Act does not oblige electors to uncover their faces to vote, have suggested that I exercise the power that is given to me during election periods to modify or adapt the Act. As I have indicated, this authority is exceptional and must be exercised with caution and circumspection, only for a temporary period of time and only when it is necessary by reason of mistakes, emergency or unusual or unforeseen circumstances. This authority is intended to facilitate the voting process, not to restrict electors' fundamental rights.

The Supreme Court has had the opportunity to consider the extent of the adaptation power of the Chief Electoral Officer in the 1993 Haig Decision, in the context of the referendum on the Charlottetown Accord. As some may remember, there had been two referendum processes to vote on the Accord: one for all of Canada except Quebec, and one applicable to Quebec only, for which the Quebec referendum legislation applied. Mr. Haig had recently moved from Ontario to Quebec and could not vote in Quebec because he had not resided in that province for at least six months, as required by the statute. He was asking the federal Chief Electoral Officer to adapt the federal statute to allow him to vote in Ontario, as if he still lived there. This is what the Court said about the adaptation power:

Though the Chief Electoral Officer is given a discretionary power to adapt the legislation, this power does not extend to authorize a fundamental departure from the scheme of the Referendum Act [...]. In exercising his discretion, he must remain within the parameters of the legislative scheme.

Similarly, in the current situation, the possibility for electors to vote without removing their face coverings is the clear and unambiguous consequence of the legislative scheme set out in section 143 of the Act.

This does not preclude the possibility to invoke my adaptation power if exceptional circumstances arose. However, at this time, I do not consider that there is a reason for me to exercise my authority to adapt the Act.

I also wish to remind you that last Monday, I asked election officials to invite anyone whose face is concealed to uncover it in a manner that is respectful of their beliefs. If they decline to do so, voters must take an oath as to their qualification as an elector in order to be eligible to vote. However, I have not amended the Act to require them to uncover their face. Again, the choice continues to be up to the individual.

At this time, I remain confident that next Monday's election will proceed in a smooth and orderly fashion in the three ridings of Outremont, Roberval-Lac-Saint-Jean and Saint-Hyacinthe-Bagot.

Thank you.

[The Chair, Conservative, Gary Goodyear]

Thank you very much, Monsieur Mayrand.

I wonder if we can take a second and introduce the team you have brought with you, for the benefit of members who may not know your entire team.

[Marc Mayrand]

With me are Ms. Diane Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel, Mr. Rennie Molnar, Executive Senior Director, Register and Geography and Mr. Stéphane Perrault, Senior General Counsel and Senior Director, Legal Services Directorate.

[The Chair, Conservative, Gary Goodyear]

Merci.

Colleagues, we will begin our first round of questioning for seven minutes, and we will start with Monsieur Proulx.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chairman.

Good morning, Mr. Mayrand, Ms. Davidson, Mr. Molnar and Mr. Perrault.

For several days now, you have been a very popular person. I do believe that when you accepted this appointment, you never expected to make the headlines of every newspaper in Canada. Welcome to this new arena.

I have a few questions for you, sir. You said you had advised the parties as well as by-election organizing committees of the following during your press conference on Monday September 10:

I also forwarded the documentation prepared for this meeting to the government and the Standing Committee on Procedure and House Affairs to inform them about the conference call [...]

To which official on the government side did you forward this documentation?

[Marc Mayrand]

I forwarded the information to the chair and clerk of the committee, to the minister responsible for elections and to the Privy Council Office.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Mr. Mayrand, when was this documentation first forwarded to the Privy Council Office and to the responsible government minister? According to your statement, you held your conference call on July 26.

[Marc Mayrand]

There were some details to attend to following this conference call, but as I recall, the following week, I forwarded the documentation to the parties I just mentioned.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

So then, the government, that is the Privy Council Office that has been shouting from the rooftops that this decision makes no sense whatsoever, has been in the loop since the end of July.

[Marc Mayrand]

It has known about this since the first week of August. If memory serves me well, the conference call took place on a Thursday.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

So then, we agree that the government was aware of the situation in late July or early August. And it did not say anything to you? It did not respond? It did not ask you if you had sustained a blow to your head or fallen off a ladder? Nothing like that?

[Marc Mayrand]

I did not receive any comments, questions or requests for clarification.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Mr. Mayrand, regarding the Standing Committee on Procedure and House Affairs, you stated that you forwarded the documentation to the chair of this committee.

[Marcel Mayrand]

And to the clerk.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

And to the clerk. A new clerk has been appointed, but the committee chair remains the same. Did you receive any kind of response from our committee chair? Did he acknowledge receipt of this documentation? Did he ask you if you had sustained a blow to the head or fallen off a ladder? What transpired? I would imagine that some kind of exchange took place.

[Marc Mayrand]

No, there was no exchange of any kind.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

I take it then that when you say “I”, you mean your Elections Canada officials as well.

[Marc Mayrand]

My office did not receive any follow up to the correspondence.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Mr. Mayrand, you testified before the committee when it was examining Bill C-31. You contributed to our discussion of the proposed legislation. Do you recall having discussed the bill with us and having cautioned us—perhaps I should say warned us—that if the bill was adopted as tabled, you eventually intended to make and announce this decision?

[Marc Mayrand]

I would like to clarify that I never testified before this committee on Bill C-31.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

You never...?

[Marc Mayrand]

I believe it was my predecessor who testified and, if memory serves me correctly—and I am not 100% certain about this—I believe he testified in either December or January.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

I am not doubting your word, but since being appointed to this position, you often testified before the committee this past winter and spring.

[Marc Mayrand]

That is correct.