Procedure and House Affairs Committee on March 31st, 2014

[The Chair, Conservative, Joe Preston]

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

We have three witnesses in this hour.

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

[Dr. Jason Mycoff, Associate Professor, University of Delaware, As an Individual]

I do, thank you.

[The Chair, Conservative, Joe Preston]

Super.

We also have Ian Lee and Leslie Seidle, who are here tonight.

What I would like you to do, if you each have an opening statement, is please give us your opening statement in five minutes or less. Then the committee would be happy to ask you questions, or answer yours, I guess, too.

Mr. Mycoff, would you like to go first?

[Dr. Jason Mycoff]

Thank you.

My name is Jason Mycoff. I am an associate professor of political science at the University of Delaware. The first thing I'd like to do is thank the committee for inviting me to testify. I'm very honoured, and I hope that I can answer any questions you might have about the theory and practice of election law.

As a very brief note on my background, I study the U.S. Congress, and my interest in election law goes back to my days of writing a dissertation at Ohio State University, where I studied how incumbent members of Congress build war chests for their campaigns. I also have a series of projects that I've been working on with my colleagues Michael Wagner and David Wilson at the University of Delaware, where we've been studying the effect of voter ID laws on election turnout.

Again, thank you for inviting me to testify. I hope I can answer any questions you might have and be helpful to the committee.

[The Chair, Conservative, Joe Preston]

Thank you very much for your concise opening statement.

Mr. Lee, would you like to go next?

[Dr. Ian Lee, Professor, Carleton University, As an Individual]

Yes.

Thank you for inviting me.

I'm an assistant professor in the Sprott School of Business.

Tonight I'm only going to address the issue of vouching, digital identity, and risk management. I'm going to narrow in on that as it is in reality a debate concerning identification policies and risk management practices of large public and private institutions in a modern complex society and the extensiveness and pervasiveness of these multiple overlapping personal digital identification systems.

Restated, the allegations of voter suppression are completely dependent on the unstated, implicit assumption that there are significant numbers of Canadians with zero identity cards.

In my judgment, Mr. Mayrand, Mr. Neufeld, and the political science professors have unwittingly significantly overestimated the number of Canadians with zero identity cards due to their apparent lack of familiarity with all the identification systems available today in Canada and risk management principles and practices.

I argue that it's impossible today in Canada to be digitally invisible with a zero identity of any kind in any database, i.e., not being recorded or tracked by any government or private firm anywhere. Of course voting will be suppressed for those with absolute zero digital identity, if identity is required for voting, but I'm going to introduce evidence that suggests that all Canadians have some form of identity.

I will now highlight the empirical evidence very quickly.

In Canada today, enormously powerful, real-time, connected mainframe computers and modern bureaucracies, public and private, create massive interconnected databases on we the people. Hospital databases register an electronic hospital record the very moment we are born. Birth registration is registered in a provincial records database and a birth certificate is issued. Social insurance numbers are registered in a federal database. Within six months of our coming into existence on the planet, we are already being measured and tracked. Education databases record when we start elementary school. Health ministry databases record immunization shots. Municipal databases record library cards. Another education ministry records when we start high school, and identity cards are issued. This is Michel Foucault and governmentality with a vengeance.

Most important of all, unlike the U.S., we've had our universal, singular, public health care system since 1965 that issues our universal personal health care photo identity card. I reviewed the health care ID policy of Ontario, Quebec, Alberta, Nova Scotia, Nunavut, Yukon, and Northwest Territories and discovered that it is mandatory to have a health care card to access any health care of any kind. If you don't have a health care card, you can't use the health care system, and we don't have private health care. According to the logic of the critics, this would be health care suppression.

Then we open bank accounts, and massive bank databases require two pieces of primary, i.e., government, ID—no utility bills, please—under the Bank Act, which was passed by MPs. According to the logic of the critics, this would be bank account suppression. By the way, 96% of Canadians have bank accounts per the FCAC established by this Parliament. So you MP suppressors are doing a pretty poor job.

Some of us get a passport requiring two pieces of primary government-issued ID—no utility bills, please. Indeed, since 2008 the U.S. demands a passport to enter the United States, and this is a direct quote from Homeland Security:

The Western Hemisphere Travel Initiative was designed to address the risks posed by accepting oral declarations and the many potentially unsecure documents that were being presented at U.S. ports of entry.

By the way, U.S. border control does not accept utility bills. Presumably this is foreign travel suppression.

According to the latest Passport Canada annual report, passport possession went from 45% to 70% of Canadians in a very short time, four years after the rule change.

Some of us get credit cards. The Canadian Bankers Association reports that Canadians hold 71 million credit cards: more identity; that's a lot of identity cards.

Today, an increasing number of Canadians go to post-secondary education. According to StatsCan, in 2013 there were two million students registered at colleges and universities where everyone is issued student photo ID, but in the immortal words of Senator Duffy, “Wait, there's more.” It gets better.

Every university and college that I checked requires photo ID to sit every exam in the multiple thousands of courses across Canada. This policy likely extends to those political science profs outside Canada who oppose ending vouching. By the way, I would encourage each of the 170 profs to publicly condemn their dean, their provost, and their president for such suppression of education freedom in requiring photo ID to write exams.

A final example is the delightful experience of modern air travel that starts with entering your passport in the airport kiosk. One minute later, you're asked again for photo ID to check the luggage—no utility bills, please. Then you go down to security to be groped, squeezed, and fondled, but not before being asked for your photo ID for the third time, and then finally to the gate where you are asked for the fourth time.

But wait a minute: Mayrand and the critics argue that we should not be adopting more stringent identification measures in the absence of evidence of voting fraud.

Excellent point. Where is the evidence of terrorism in Canada? There are no planes that have been hijacked and blown up in Canada. According to this curious logic, we must stop requiring photo ID to board planes in the absence of evidence of planes being blown up. And we should stop demanding student photo ID, as there's no evidence of exam fraud; of course not, because we demand photo ID.

In fact, this debate has been hijacked by an absurd test that undesirable risks must be experienced before prophylactic measures can be adopted, contrary to all principles of risk management.

Forgive me for this humour, but I'm trying to use humour to make my point.

The critics have causality upside down and backwards, and it can be reduced to the following proposition: one, have unprotected sex, and two, if a partner becomes pregnant—the evidence—then, and only then, number three, start using a prophylactic device. Clearly this is absurd. No, Mr. Mayrand. No, Mr. Neufeld. No, 170 political science profs. One uses a prophylactic device before sex, not after—and that's in all of the sex education manuals across Canada in the high schools—to ensure that the baby or the evidence does not materialize in the first place.

For the identical reason, we demand photo ID to cross the border; for the identical reason, we insist on photo ID to fly on a plane, write an exam, or open a bank account: because it is prudent and responsible risk management to adopt anticipatory precautionary measures before bad things happen, not after bad things happen.

This is exactly why the U.K. Electoral Commission, in the oldest democracy on the planet Earth, 90 days ago recommended mandatory photo ID for voting by 2019. They are following Northern Ireland, which adopted mandatory photo ID for voting in 2003, and pursuant to their study, found that mandatory photo ID does not suppress voting.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you. That was a little over, but we'll go to Mr. Seidle, for five minutes or less if you can, please.

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

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for your attention.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Seidle.

We will now go to questions. Members can ask questions of any or all.

Mr. Lukiwski, for your first seven minutes' worth of questions.

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

Thank you, gentlemen, for appearing before us.

I may not use the entire seven minutes, and I'll cede the rest of my time to Mr. Richards.

I'd like to start off with Mr. Mycoff, because his opening statement was extremely brief.

Mr. Mycoff, I want to question you on one element of your presentation. You said that you have done studies on the relationship between identification and voter turnout. I think I heard you correctly. Was that what you said?

[Dr. Jason Mycoff]

That's right.

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

Could you expand upon that?

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

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

[Dr. Jason Mycoff]

In our studies we have not found a direct relationship between identification requirements and voter turnout. We've studied the aggregate level and the individual level for individual voters. We found instead—and this is backed up by the majority of political science theory on voting—that there are better indicators of who's going to turn out, and those are the indicators that drive voter turnout.

Number one is interest in politics, interest in the election. Those who are interested in voting are going to show up; they're going to participate. The cost of identification is a concern. The U.S. identification and Canadian identification systems are very different, but when individuals need to get identification, that added cost could stand as an obstacle in the way of voter turnout. But in our research, we found no evidence that, when controlling for interest in the election, a requirement of having identification keeps voters from showing up for the election.

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

If I'm hearing you correctly then, very quickly, you're suggesting that regardless of the requirements to produce identification, that in itself does not have any direct correlation to the voter turnout. The mitigating factor, the important factor, is an interest in casting one's ballot. Is that correct?

[Dr. Jason Mycoff]

That is correct. There is no main effect of a requirement for more aggressive forms of identification: a photo, expiration date, things like that.

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

Okay. I think my colleague may be able to pursue that line of questioning with some of our other witnesses as well, so I'll cede my time now to Mr. Richards.

[The Chair, Conservative, Joe Preston]

Thanks, Mr. Lukiwski.

Mr. Richards, for three minutes.

[Blake Richards, Conservative, Wild Rose, AB]

Thank you very much.

I would like to just follow up on that, Professor Mycoff. I've had a chance to read one of the papers that you wrote on this in 2009. It's my understanding that you'd not really found any direct relationship there, and I appreciate your confirming that today.

However, I did note that in your paper you indicated that theoretically at least anyway, the most likely to be negatively impacted would be people who wanted to vote but were unaware of ID requirements. I don't know if you're familiar with our new fair election law in Canada, which we're studying tonight. One of the things that we're doing is we're trying to focus the education that Elections Canada provides to voters on the logistics of voting, making sure that people are aware of where, when, and how, including what ID to bring with them to be eligible to vote.

First of all, I just want to verify that is in fact what you did find, that this might be the person who would be most likely to be affected. Also, would you believe then that what we're seeking to do here, which is greater focus of the education on making sure people are aware of what they need to bring in order to vote, would be helpful in combatting any potential risk there would be there?

[Dr. Jason Mycoff]

Yes, there is the risk that people who are unaware of any sort of voter registration requirement are less likely to show up to vote. That doesn't just apply to voter identification, although certainly if there's a new law, if you're adding additional identification requirements, one of the big concerns would be that someone who has voted in the past but really doesn't pay attention to politics much in between elections, may not be aware of changes in the law and may show up to vote like they normally would every year, or whatever time period, and not be prepared to participate in the election with their identification. I think you're right that this is a risk of these sorts of identification laws.

That risk is mitigated over time as people become more and more aware. I think, on the second point you asked about, education is absolutely critical in informing voters and letting them know about the new requirements, explaining how they go about securing the proper identification that they need on election day.

[Blake Richards, Conservative, Wild Rose, AB]

Would you feel that the requirements we have in our bill which would focus that education on those specific points would be helpful in terms of dealing with that then?

[Dr. Jason Mycoff]

Yes, expanded educational programs would certainly help in improving the chances that fewer people would be caught unaware of the new requirement, and therefore maximize their opportunity to vote.

[Blake Richards, Conservative, Wild Rose, AB]

I will turn to you, Professor Lee, in my remaining time.

You mentioned in your opening statement that it would be very difficult to imagine someone who wouldn't have the ID necessary to be able to vote in an election. That's the view I've shared. I've certainly gone through a number of scenarios in which I've tried to come up with something where someone wouldn't be able to access their ID and I have not been able to find one. I think that's what you've confirmed.

[Dr. Ian Lee]

Yes. I was only given five minutes.

[Blake Richards, Conservative, Wild Rose, AB]

Professor Seidle mentioned specifically about youth. I just wanted to hear any response that you had to his comment about youth potentially being a problem in terms of having that ID. What would your thoughts be on that?

[Dr. Ian Lee]

I think that youth probably have more ID than anybody else. They're on Facebook; they're on everything else.

I just want to mention that I only had five minutes so I could only present a thin amount of what I found. I went through very large numbers of institutions in Canadian society. I went through their websites. I had to find the proper procedures to open up a bank account under the CBA. I went through all six banks. I went through the ministries of education. I went through a lot of institutions, and of course they all have identity requirements. You can't just walk up to an institution and say, “Give me a bank account, and by the way I don't have any ID and I'm not going to give you any ID.” You just can't do that. You can't get a passport. You can't get a SIN card. You can't get a health card. You can't get a driver's licence. The most universal is this one, and that's the health card, and it's universal.