Procedure and House Affairs Committee on April 2nd, 2014

[The Chair, Conservative, Joe Preston]

Committee, it's great to have you all here tonight.

This is the 26th meeting of the procedure and House affairs committee on our study of Bill C-23.

We have three witnesses tonight. We have Raji Mangat, counsel from the British Columbia Civil Liberties Association; Leilani Farha, executive director of Canada Without Poverty; and from the Canadian Civil Liberties Association, Cara Zwibel, and I've been her tour guide earlier today.

We're all set tonight and we've decided that for opening statements we will start with Ms. Farha.

Ms. Farha, you have five minutes or less, please.

[Leilani Farha, Executive Director, Canada Without Poverty]

Thank you.

Thank you for the opportunity to appear before you this evening.

I find it somewhat ironic that just over 50 years ago aboriginal peoples were granted the right to vote in Canada, and here we are just a short while later struggling to defend their rights. This has been a huge reminder of how fragile democracy is and how vigilant we have to be to protect it.

I am Leilani Farha, the executive director of Canada Without Poverty.

CWP, whose board of directors is composed of people living in poverty from every province and territory, is deeply concerned with the impact of the fair elections act on the right of poor people to vote in Canada. In particular we are concerned that the bill bans Elections Canada from promoting the right to vote, and we're concerned about the elimination of vouch voting without a suitable alternative. I'll address each of these in turn.

The ban on Elections Canada from promoting the vote is simply illogical. It is illogical in the face of the lowest voter turnout in our history, suggesting a near complete loss of faith in the democratic process by a huge percentage of Canadians. As well, it is illogical in light of the fact that poor people are experiencing unprecedented social and political exclusion. Surely it is precisely now, in the moment of this democratic deficit, that Parliament should be pouring resources into efforts to promote the vote. Elections Canada must be allowed to continue to do its work to foster democracy.

With respect to vouch voting, CWP is concerned that its elimination without a suitable alternative will disenfranchise tens of thousands of low-income voters and violate their section 3 charter rights. Vouch voting is used particularly by those who are poor, homeless, or otherwise marginalized. Though the government seems to find it incredible that over 100,000 people in Canada don't have adequate ID for voting purposes, it's a reality.

Let me give you one example from my work. Imagine a woman living in a situation of domestic violence. In the midst of a particularly brutal incident she manages to escape to safety by fleeing to a friend's house. She leaves behind all of her belongings, including her wallet, thinking only about saving her life. She has no photo ID, no proof of residence. She has nothing but the clothes she is wearing. Eliminating vouch voting is not going to provide this woman with voter-appropriate identification. Eliminating vouch voting will do only one thing. It will prevent her from exercising her right to vote.

What troubles CWP about all of this is that the government has yet to articulate an understanding of how important the right to vote is, particularly for those who are socially and politically excluded. Perhaps they don't know.

Imagine being the woman I just described. She has absolutely nothing. Ensuring that she has the right to vote allows her to be more than just her circumstances. It allows her to engage her nation and it restores something to her. As the South African constitutional court said so simply, “The vote of each and every citizen is a badge of dignity and of personhood.” Why wouldn't the government want to ensure the right to vote for this woman? Isn't that what democracy requires?

CWP is offended that Minister Poilievre wants us to imagine that allowing this woman to vote might compromise the electoral system. The minister has invented the myth of fraud by conflating fraud with vouching irregularities. I remind this committee that no evidence of fraud has been found with vouch voting, only administrative errors.

In conclusion, CWP recommends that the government just pause for a moment and reflect on the fact that it is about to deprive tens of thousands of disadvantaged Canadians of their democratic citizenship and their constitutionally protected right to vote.

CWP recommends that Bill C-23 be rejected in its entirety. If the bill continues to stand, however, we recommend at a minimum the following: first, the provisions narrowing Elections Canada's mandate with respect to promoting voting be removed from Bill C-23; and second, and this has two parts, maintain vouching and fix it so it functions more effectively, or adopt a new system for in-person identification that treats voters with dignity and respect.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Ms. Mangat.

[Raji Mangat, Counsel, British Columbia Civil Liberties Association]

Thank you, Mr. Chair, and members of the committee.

The B.C. Civil Liberties Association is a national, non-partisan, non-profit organization based in Vancouver. My statement will focus on the BCCLA's main concern with this bill, the removal of vouching.

A constitutional challenge to the voter ID laws that came into force in 2007 is currently before the courts. The Henry case has been heard by the B.C. Supreme Court and the B.C. Court of Appeal. Both courts found that the voter ID laws are on their face a violation of the right to vote protected by section 3 of the charter. Both courts ultimately upheld the voter ID laws, finding that they were justifiable. On Monday an application for leave to appeal to the Supreme Court of Canada was filed in this Henry case.

The BCCLA believes that these voter ID laws are an unjustifiable violation of the charter. They seek to address a single speculative concern, voter impersonation at the polls, at far too great a cost: the disenfranchisement of Canada's most vulnerable and marginalized citizens. Removing vouching further makes these voter ID laws unconstitutional and ripe for a charter challenge. In his defence of voter ID laws in the Henry case, the Attorney General of Canada argued that vouching is a fail-safe in the legislation, because it allows eligible electors, without the requisite types of ID, to cast a ballot.

Much has been made about the 39 forms of ID acceptable to prove voter eligibility. I ask this committee to look critically at that list of IDs. While these forms of ID may indeed be largely available to a majority of suburban voters, these are not viable forms of ID for many Canadians, including many of the people on whose behalf the BCCLA acts. A homeless citizen on the Downtown Eastside of Vancouver, for instance, does not have a pension plan statement. He or she does not have utility bills, or vehicle ownership insurance, or a residential lease, or an income tax assessment. It strains credulity to believe that these 39 forms of ID are an answer to the disenfranchisement that will result from this bill.

Before 2007 statutory declarations were permitted as a form of eligible identification. Hundreds of voters on the Downtown Eastside swore statutory declarations establishing their right to vote. Demand for statutory declarations was actually on the increase. Amendments in 2007 eliminated those statutory declarations and put in place the limited voting system that we have now and that is at risk.

Of the prescribed forms of secondary ID, perhaps one, a letter from a shelter or a soup kitchen, may be within reach for some of these people, but all too many of our citizens are unsheltered. Theft of identity documentation is a huge problem among homeless populations in urban cities. Getting and keeping current documentation is expensive and difficult for those with no fixed address. Where such identity documentation does exist, it will very rarely prove the individual's current address, as is required by the law.

Everyone agrees that we need to encourage and increase voter turnout, and everyone also seems to agree that we need to reduce irregularities in the voting process. The disagreement comes when we turn to how to do this. The proposed measures to reduce irregularities will disproportionately and materially impact many of our most vulnerable and marginalized citizens. This bill seeks to reduce irregularities by effectively disenfranchising those voters.

In a free and democratic society, the right to vote cannot be sacrificed at the altar of administrative convenience. Moreover, the underlying premise that if we get rid of vouching we will get rid of irregularities and therefore remove fraud is wholly mistaken. At best voter ID laws can only ever get at the risk of one form of fraud: in-person voter impersonation at the polling station. Irregularities in how the polls operate, even serious irregularities, are not proof positive of voter fraud. All other options for reducing irregularities must be considered before we take one large step backwards to disenfranchise voters.

This bill takes as its starting point an impoverished view of the integrity of Canadian citizens in exercising their most fundamental political right. The bill presumes voter impersonation fraud where there is no evidence of that happening. It subverts the underlying purpose of the legislation, which is to foster the exercise of the franchise. It will do little to enhance public confidence. Instead, it will effectively nullify the political participation of the most marginalized and vulnerable in our society.

In the BCCLA's view, that is the real threat to the integrity of our political system.

Thank you.

[The Chair, Conservative, Joe Preston]

You're welcome.

Ms. Zwibel, you're next. You have five minutes or less.

[Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association]

Thank you, Mr. Chair and members of the committee, for inviting me to speak to you today on behalf of the Canadian Civil Liberties Association.

The CCLA is a national non-profit, non-partisan, non-governmental organization that promotes respect for and observance of fundamental human rights and civil liberties. This year marks the CCLA's 50th anniversary defending the rights and freedoms of Canadians. It's in this capacity, as a defender of core rights, including the fundamental right to vote, that I am here to express our very serious concerns about certain aspects of Bill C-23.

I know that my time is short, so for the purposes of my opening statement I want to focus on those aspects of the bill that will have the most direct and immediate impact on the electorate, and in particular may erode the fundamental right to vote. CCLA has submitted a written brief to the committee that outlines a number of our concerns in more detail.

With this audience, I don't think I have to go on about the importance of the right to vote and how crucial it is to our democracy. The right to vote is protected in our charter, and it is excluded from those rights subject to the notwithstanding clause. As our chief justice has held, “In a democracy such as ours, the power of lawmakers flows from the voting citizens, and lawmakers act as the citizens’ proxies.”

With all due respect, it would substantially delegitimize our system if, in your role as proxies of the people, some of whom helped to elect you, you in turn denied some of them their constitutionally guaranteed right to vote.

CCLA's biggest concern about Bill C-23 is the proposal to do away with vouching and to preclude use of the voter information card as a form of identification. We know that over 100,000 Canadians established their identity by vouching in the last election. There are very strong reasons to believe that these individuals will be disenfranchised if Bill C-23 passes as it currently stands.

I appreciate that people in this room may have trouble understanding why vouching may be necessary. For many of us, myself included, having basic identification is something we take for granted. However, those people who don't have the ID necessary to vote are often from marginalized groups. In general, these are not people who will be testifying before this committee. In fact, I did have to show identification to get into this building.

Those people stood up and chose to participate in the last election. They chose to express their democratic will. Many of the people who rely on vouching are students, seniors, aboriginal persons. Many live in rural and remote communities. Please do not ignore those people, and please don't erect barriers to their ability to vote. It's a fundamental precept of our system that every vote counts. If the changes made in this bill disenfranchise a single person, in our submission that is one too many.

We appreciate that the basic purpose of the proposed change is to address concerns about voter fraud. I have to repeat what you have by now heard likely many times before, from a number of witnesses who have appeared before the committee, including those sitting next to me. There is clear evidence that vouching has resulted in administrative problems and irregularities, but there is no evidence that it has resulted in fraud. There is no evidence that individuals who were not eligible to vote were permitted to do so as a result of vouching. In fact, the evidence that we do have is to the contrary.

The appropriate response to a concern that something may be broken in the administration of our electoral system is to take steps to fix it. A response that results in disenfranchising eligible voters is simple indefensible. In our view, this is a problem from a public policy perspective as well as a legal constitutional perspective.

The safeguards that are built up around vouching—for example, the need for record keeping, the fact that one person can only vouch for one other person—are procedural safeguards. In a recent Supreme Court of Canada case, the court made the very important point that these procedural safeguards are not ends in themselves. They are provisions that help to ensure that only those who have a right to vote may do so, but they are part of the Canada Elections Act, and the broad purpose of that act is to enfranchise all persons entitled to vote. It's to facilitate the right to vote.

Furthermore, the court remarked that they apply a stringent justification standard when considering laws or actions that result in a denial of voting rights. In the absence of any evidence that vouching has resulted in allowing ineligible persons to vote, it is hard to see how this stringent standard could be met. The CCLA believes these provisions of the bill will disenfranchise voters, may cost taxpayers money in protracted litigation, and may ultimately, if tested, be found wanting from a constitutional perspective.

I'm just going to briefly mention a few of CCLA's other concerns with this bill, the details of which are laid out in our written submission.

First, we urge the committee to remove the proposed changes to section 18 of the Canada Elections Act, which place significant restrictions on the role of the Chief Electoral Officer. This provision undermines the important role that the CEO currently plays. If there are concerns that basic information is not being communicated, that should be addressed, but not at the expense of other important public education and outreach done by the Chief Electoral Officer.

Second, we are concerned about provisions that shroud in secrecy investigations into allegations of fraud or other electoral improprieties. We certainly recognize the importance of upholding the presumption of innocence and the need to respect privacy, but the current bill doesn't strike the right balance between these interests and the need for transparency and the public's right to know.

Finally, we're concerned about provisions in the bill that attempt to draw a distinction between fundraising activity and advertising, and that exclude some of the expenses associated with fundraising from the quantification of election expenses. A bright-line distinction between advertising and fundraising is simply not possible. In excluding fundraising costs from the calculation of expenses there's both the potential for unlimited spending and a lack of transparency with respect to what is spent.

The same applies to the provision that would exclude from election expenses the value of services provided to a party to solicit funds from those who have made prior contributions of $20 or more in the last five years.

To conclude, CCLA strongly urges this committee to reconsider and remove those provisions that I have discussed.

I welcome the chance to answer any questions, and thank the committee again for this opportunity to appear.

[The Chair, Conservative, Joe Preston]

Thank you all for your opening statements. They were fantastic.

We'll go to a seven-minute round, starting with Mr. Reid.

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

Thank you, Mr. Chair. I very much appreciate it.

I appreciate all of you coming here today. Thank you.

I'm wondering if we could go back. This is not the first change that has been proposed to Canada's vouching laws. The Canada Elections Act as it now exists was amended by Parliament, if my memory serves—that's what I was running back and forth to talk to the analysts about—in 2006 or 2007, possibly 2008, but in time for the 2008 election. We were able to confirm that. So the 40th general election, which led to the Parliament prior to this one, as well as the 2011 election, were conducted under rules in which vouching was more restricted than it had previously been.

I'm sure you already know it but just so everybody here has context, the restrictions that were placed into section 143 of the Canada Elections Act specified: that no elector shall vouch for more than one other person; that an elector who has been vouched for cannot vouch for somebody else—so-called serial vouching—and finally, that you have to live in the same polling district as the person for whom you're vouching. Those restrictions were put in place.

First, do each of you support the changes that were made then? Second, if you had the opportunity, a free hand in this matter, would you reinstate the status quo ante prior to the set of changes to section 143 that took place two Parliaments ago?

[The Chair, Conservative, Joe Preston]

Can anyone answer, Mr. Reid?

[Cara Zwibel]

Chair, I'm happy to start.

I would say that the fundamental premise underlying this is that we assume that any restrictions that are placed on the right or the opportunity to vote should have a reason behind it. There should be evidence to demonstrate that this is necessary.

To the best of my knowledge at least, the provisions in Bill C-23 aren't correcting a problem. There's an administrative problem with how things are recorded when people vouch, but there's not a problem in terms of ineligible voters being allowed to vote or at least there's no evidence of that problem. So I would say that with other changes that have been made in the past that are more restrictive, I'd have to look at the evidence that existed there, but I would say that no, we wouldn't have supported those changes either. I can't speak to what the CCLA did or didn't do at that time. I wasn't with the organization at that time.

We're talking about people's right to exercise their democratic will, so we should be correcting a problem if we're placing more restrictive parameters on their ability to do that.

[Raji Mangat]

My understanding of how things were before those amendments came into force in 2007 is that, while you may have been asked to provide identification at the poll, you were not required to do so unless the individual at the polling station, the official, had any concern about whether you were the person you said you were, when they looked down the list of electors.

So in many instances, if you had been living in that polling division for some time and had voted there before, you would likely have the correct information on the list of electors. Prior to 2007, you would go and say, “I'm Raji Mangat, I live in this polling division, and here's my name on this list; you see it”, and they would check it off and give you a ballot. If they had doubt that I was the Raji Mangat who I said I was, they could ask me to provide something to identify myself.

My understanding is that, when those amendments came into force, that's when it was obligatory to provide identification. Up until that point, you may have been asked for it—and common sense would dictate that people would keep it on hand in case they were asked for it—but you didn't have to.

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

That's good.

Ms. Farha, could you answer very briefly? We've actually used up almost all my time, and I wanted to get to the point of it. But please let me know.

[Leilani Farha]

Sure, just very briefly, I actually did a historical search within my own organization, which has a 43-year history in this country, to see if we had weighed in on the reforms that were happening in 2007. We didn't and I was wondering why. Of course, we were being defunded, in fact, at that time.

But we did weigh in in the 1990s. What I noticed there was that our position today, and it would have been our position in 2007, was to ask who is using vouching and we found that it is the most marginalized communities, and we are concerned that those marginalized communities are facilitated in the voting process. So we would stand up and speak against a system that was going prohibit people from voting.

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

The only reason I asked that question—and thank you all for giving me quite full answers; you're very knowledgeable about that history—is that, first of all, a broader change occurred in the past and it wasn't quite the cause célèbre that it seems to have become now. That kind of mystifies me. I don't blame you for that; I just point this out.

But the second thing I want to point out is that vouching is actually a very imperfect solution. If you take a look at the Supreme Court case in Wrzesnewskyj v. Opitz, we find a population group for whom there is no vouching permitted under current rules. The court had to deal with that whole process. One of the things that has mystified me is that nobody—given all the talk there has been about people who are going to be disenfranchised by this—has said that vouching should be reintroduced for people living in these care facilities, despite the fact that is the clearest case where there could be no fraud occurring. So I find that this is serving more as a proxy for people's general frustration with other issues than it is a substantive issue. I don't mean to cast aspersions on anybody here, but it seems to me that has been the emotional calculus that is going on.

I must say that in the case of the example that was given out, the single woman who has to leave her home, there's a fundamental issue that vouching would not resolve anyway. Her residence is almost certainly in the poll where her abusive ex-husband is, and therefore, she would need him to vouch or someone in that area to vouch for her in order to go and vote. Although I sympathize with her plight, I think her problem is not really resolved by vouching. It's resolved by, perhaps, something else. Vouching itself is really not the solution to that, particularly if she lives in a place, an apartment building for example, where the only person she knows in that area is her husband. Do you see what I'm getting at?

[The Chair, Conservative, Joe Preston]

Thank you.

We'll go for a seven-minute round to Mr. Scott. Are you starting off?

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

Thank you, Mr. Chair. I'm going to take five and give two to my colleague.

[The Chair, Conservative, Joe Preston]

I'll pay attention and give you some sort of signal.

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

Great.

Yes, I wouldn't mind following up on what Mr. Reid has said at some point. Whether or not the individuals' residence stays where they're fleeing from or where they've moved to, I would have thought it would be where they've moved to—but anyway.

I have a question for each one of our witnesses. I appreciate that you're here, and I want to start with Leilani Farha. You mention in your submissions a passage from the South African constitutional court where it stated that the right to vote is “a badge of dignity and personhood”. You later used your own expression that it's important, in thinking about the right to vote of people who are more disadvantaged, to think about them as being more than just their circumstances. There's a perspective here that, somehow, if you're marginalized in society the right to vote is some kind of almost a privilege or side right versus an intricate and important right, if not more important to people in those circumstance. So I appreciated that.

You ended by saying that an in-person identification system, at minimum, would be needed if vouching were to be lost. Do you have any sense of what that would look like, if it actually put those dignity interests of people at the front of the design of this system? What would that look like?

[Leilani Farha]

Thanks for the question.

Let's be clear; I'm the executive director of an anti-poverty organization. I am not someone who spends her time looking at how to build good electoral systems. That being said, I think it's kind of obvious. If you're trying to protect the dignity interests of people and you think about their circumstances—people are combatting pretty adverse circumstances who might otherwise avail themselves of vouch voting. If they've made it to the point where they're ready and able to vote, you come up with a system that's simple, straightforward, and easy to execute for everyone—not only for the person who's going to vote but also for the people receiving the person who's going to vote.

I tried to do a bit of exploration before coming here. Others of you have seen in the media the references to what's done in Australia, a country where I lived for a couple of years up in Queensland. They have a very simple, very straightforward way of dealing with it. I'll read to you a quote, “To vote in Queensland, all an Australian needs to do is stroll into a polling booth,”—and I imagine some of them would be barefoot—“state that they do not have proper identification, and sign a declaration confirming their identity, which is later checked against the electoral roll.”

That seems pretty neat, tidy, straightforward, and simple. There's something very dignified about it. You arrive in your polling station, you say who you are, you swear an oath—it might be a legal oath of some sort—and you move forward with your vote.

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

I think that also gives a flavour of whether that could transfer here, where we don't necessarily have the kind of enumeration they now have in Australia. We'd have to look into it.

Cara Zwibel, I want to ask you about your concerns around the fundraising exceptions to campaign expenses. What do you see in those exceptions? What do they look like? Why are you concerned about them?

[Cara Zwibel]

I'm concerned because the bill tries to draw a distinction that expenses incurred for fundraising purposes are not counted as election expenses. My understanding is that means they're not generally going to be clearly reportable. I think that for a bill that's been touted as being about getting money out of politics—for a government that's talked a lot about the need for transparency and accountability—something that tries to draw this distinction and that removes these expenses from what will be visible in the course of reviewing expenses and election returns is problematic. It's hard to imagine how a candidate or a party would solicit funds without also soliciting votes. There's a fundamental flaw in the idea that those things can necessarily be separated.

With respect to the other provision, about excluding expenses for contacting individuals who have made prior contributions of $20 or more in the last five years—part of our concern there is that it gives an advantage to more established parties, it gives an advantage to older parties, and it puts newer parties at a disadvantage. Part of the idea behind both sides of our electoral equation, in what parties and candidates are allowed to do and what voters are allowed to do, is that there's meant to be a level playing field, and I think that provision undermines that.

[The Chair, Conservative, Joe Preston]

Thank you.

I'm sorry, Mr. Scott, I didn't stop it at five minutes.

Mr. Christopherson, take the next minute-and-a-half.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks, Chair.

Thank you very much for your presentations; they're really excellent. I especially appreciate the real-world examples of who's going to be denied by virtue of eliminating vouching. The government, after scouring the planet, I'm sure scraped up one person who agrees with them, and virtually every other expert around the world disagrees with them, but we persevere.

One of the other things they're removing is the role of the Chief Electoral Officer in educating Canadians. Given the population we're talking about, how damaging could that be, to just limit him to tombstone information, in terms of where and what time you vote, and that's it?

Could you give us your thoughts, please?

[Raji Mangat]

Sure, I'll take a stab at that.

I mentioned only one of our concerns because of the short time period, but clause 7 of the bill, which is the one you're talking about, which will amend section 18 by limiting the information that the Chief Electoral Officer can share with the public, we think this is very problematic as well. We see no reason why the types of information that the bill includes—the where, when, and how of voting—couldn't be added to enhance what the Chief Electoral Officer is already permitted to do, or why we would want to have a distinction drawn. The promotion of political participation and joining in our democracy, the value of voting, which goes beyond going to the polling station and being told what you need to do—why would we want to limit that? We think that would have a very negative impact on the populations that the BCCLA works with.

These are people who historically have a lower voter turnout, and who we would like to see engage in more political participation. For most of these people their right to vote is probably the most fundamental and only way in which they can actively engage in our political system. So removing that power, we think, will be very damaging to democracy.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Simms, you have seven minutes, please.