Procedure and House Affairs Committee on May 26th, 2015

[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.

[The Vice-Chair, NDP, Alexandrine Latendresse]

Thank you very much.

We will now move on to questions.

Mr. Reid, you have seven minutes.

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

Thank you, Madam Chair.

Maybe I'll start with a little editorial complaint.

I think Professor Pal is quite right that the courts have been expanding this aspect of section 3. In my humble opinion, they've been unduly restrictive when it comes to another aspect of section 3. The 1991 reference regarding electoral boundaries in Saskatchewan effectively said that we all have the right to vote. It's of no matter if the weight of my vote is grossly disproportional to the weight of someone else's vote based on the arbitrarily sized ridings in which we live. I think that's an unfortunate aspect of Supreme Court jurisprudence that could be revisited at some point in the future.

At any rate, seeing as you raised, Professor Pal, the issue of other countries and how they conduct their overseas polling, I'll ask the question of whether you have any particular model you look at that seems salutary. I think, for example, Australia's mandatory voting laws require that Australians overseas must go and vote at an embassy or consulate, unless they can demonstrate they were beyond a certain number of kilometres. I think to avoid a fine you have to file some kind of document saying you were simply not within reach of the nearest consulate or embassy. Maybe they have some relevant experience.

Rather than putting the model into your mouth, however, why don't you tell me if you have any that seem particularly admirable or effective.

[Prof. Michael Pal]

Thanks very much for the question.

I'm on the record at this committee a couple of years ago speaking on the Fair Representation Act criticizing that 1991 decision from the Supreme Court. I believe we're on the same page that we should have representation by population.

In terms of models, I think the current Canadian system is not so bad, but the overarching principle should be how we can make access for all the people who want to vote as easy as possible, keeping in mind that we want electoral integrity and to prevent fraud. A suggestion from another committee member was to expand the use of email. To be allowed to vote in embassies is another option. Military personnel are allowed to vote on military bases—someone correct me if I'm wrong—but having physical locations in places where there are large numbers of non-resident Canadians is one useful option.

Mr. Kingsley suggested provisional balloting is also a potentially useful one, and if there are any disputes about ID or residence then the ballot would potentially be counted, but put in a separate pile where things would be proven. The issue there is that you don't want to make it so onerous for the person to have to go prove otherwise.

The United States is one jurisdiction where they have enacted more onerous voter ID requirements. The courts have been quite willing recently to strike those down and to go back to the constitution. Making the vote as accessible as possible, I think, should be the guiding principle.

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

Thank you.

With regard to the issue of a provisional ballot, I wanted to ask Ms. Woo.... Forgive me, I'm not sure, should I be calling you Dr. Woo or have you gotten to that point yet?

[Dr. Joanna Woo]

Yes, I have.

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

Would you feel comfortable because you're the one person who is talking primarily from personal experience at being an overseas voter.... The so-called provisional ballot is one in which the ballot is put into an envelope for anonymity so that we can't tell that it's your ballot, and then it's opened up for verification after the fact. That means your vote wouldn't get counted for some time and until some tests had been gone through to confirm that it's a valid ballot.

Would you be comfortable if that sort of system were used for overseas ballots? That would, to some degree, allow for ballots to arrive after the election day and then to be counted if they are in a constituency where they might have an impact on the election. It would mean they are being treated some degree differently than they are being treated now. Would you be okay with that?

[Dr. Joanna Woo]

Yes. The current system, because I've done this a couple of times now, is that we get three envelopes: the inner envelope is anonymous; the second envelope shows your name and your riding, and you sign that you haven't voted before; the third envelope is to mail it back. I'm definitely used to that. I think to make it completely anonymous you'd have to send all the ballots together to Ottawa to get counted later. I am totally okay with that because I understand that only 6,000 ex-pats vote from abroad, and honestly, their numbers are small and probably won't affect results that are announced on election night. So I would be okay if it were counted later, yes.

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

It sounds to me as if the experience of being a voter under the provisional ballot proposal that Mr. Kingsley made, effectively, would be exactly the same as the experience now. What would be different would be what happens after the ballots have been sent in.

[Dr. Joanna Woo]

I don't understand what's different.

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

It sounds as if it will be exactly the same from your point of view, but all that would change.... His proposal was that the ballots come in and are set aside for verification purposes. We do the verification after the fact instead of requiring you to prove your identity in advance. That eliminates some of the problems that can arise that you describe where there's a slowness in getting responses back. That would be the only significant change, I think. You'd get your ballot perhaps earlier, but it might still not get counted until after the date of the election.

[Dr. Joanna Woo]

As long as it's counted, I'm happy with it.

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

That's very helpful. Thank you very much.

Thank you, Madam Chair.

[The Vice-Chair, NDP, Alexandrine Latendresse]

Mr. Christopherson, go ahead for seven minutes.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Madam Chair.

Thank you all very much for your attendance.

Under the heading of “voter suppression”, the first thing you find is Bill C-50, because that's really what this is all about in our opinion. It's a continuation of the suppression clauses that have been incorporated into our election laws.

I want to make reference to the Chief Electoral Officer. Remember that fellow, the one whom the government didn't consult when they brought all the changes to the “unfair elections act”. He came back to talk about Bill C-50, and one of the things that's been missed, and I don't think it was picked up in the public domain through the media, is that the change in clause 4 of Bill C-50 adds proposed paragraph 143(2.11)(b) to the Canada Elections Act. It incorporates a change. So far we've been focusing on the ID at the polling station as if it only affected foreign patriots voting who live abroad, but the fact remains that this change would change the entire Canada Elections Act.

This is the clause that's causing all the concern. It says, “an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province or”—and this is the key thing—“that is otherwise formed in Canada.” Nobody knows what that means.

The change, if this passed, would not just be for voting abroad. It would be for all voters. Monsieur Mayrand said:

I am, however, concerned with the fact that the bill will make it more difficult for electors abroad to vote, and I expect that many will not be able to do so under the new rules. I am also very concerned with the new requirement that pieces of ID be issued by entities incorporated or “formed in Canada”—a criterion that is unclear and that cannot be administered by election officers. I urge the committee to consider this aspect of the bill, and also to consider other changes set out in the table....

We have our Chief Electoral Officer suggesting this is a real problem and he would like it removed. I wonder, Professor Pal, if you'd be kind enough to comment on that, because you did touch on this a bit, this whole aspect of the confusion it will cause. Would you confirm that your interpretation is that it does change the Canada Elections Act, and that these concerns at the voting station won't just happen outside Canada but could potentially happen in every polling station in Canada? Do you agree with that interpretation, sir?

[Prof. Michael Pal]

I first became aware of this issue reading the testimony of Mr. Mayrand. I agree, it does cause some confusion. The issue for me is, as a legal matter, we want to avoid disputes after the election. We want to avoid uncertainty at the polls that cause people to have to go to court. As a lawyer, if you have a hammer, everything looks like a nail, so lawyers often say going to court is the answer. It isn't in an electoral context, because it can potentially undermine the confidence of voters in how the system works. We want to get it right the first time.

I think the Chief Electoral Officer is absolutely correct to say there's some uncertainty here, just as there is with some of the ID provisions in the act. There might be confusion among voters, and we want to avoid that as much as possible because it can lead to legal challenges afterwards and confusion about who is the member of Parliament for a particular riding.

[David Christopherson, NDP, Hamilton Centre, ON]

I absolutely agree with that, but it also adds to the potential for confusion in the polling station. That then creates a backup, which then has people saying, “To heck with this, I'm not standing in line for two hours.” That's why I opened by saying it's voter suppression. The more difficult you make it to vote, the fewer people are going to vote. This is deliberate in my view.

I submit that the government has deliberately incorporated a piece of confusing language in order to cause confusion so there are backups at the polling stations that result in people getting frustrated and staying home. In my view, this has been the overall objective of the government in all of its reforms to the electoral act, with a few minor exceptions. The fewer people who vote the better for them, because the government knows, quite frankly, that the bigger the turnout the less well right-wing governments tend to do, here and elsewhere.

I also want to go back to the registry, the international register of electors. Again, Professor, you were having some problem understanding why it's being changed. I put the question to Monsieur Mayrand, is it broken? Basically, he didn't see that it was broken at all. Again it raises the concern, is the government again doing this in an attempt to have fewer people vote? The whole idea that you would eliminate a registry that's working and then tell people you can't even apply to vote until the writ is dropped, how stupid is that? I don't use that word very often, but that is just plain stupid. The fact of the matter is—

What?

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

You use it all the time.

[David Christopherson, NDP, Hamilton Centre, ON]

Not often enough in my view.

[Some hon. members]

Oh, oh!

[David Christopherson, NDP, Hamilton Centre, ON]

It's a great word politically. A lot of moms don't like it though, so I try to be careful. There were buttons that came out not long ago that said keep your stupid tax cut. People didn't like the word stupid.

The whole idea that you could not even apply to vote until the writ is dropped is simply absurd. I would ask Professor Pal if there is anything he can think of that would, from a reasonable, legal.... Forget the rhetoric that I've been giving you, set all that aside. Is there a really good reason why anyone should have to wait until the writ is dropped to apply to be able to exercise their constitutional right?

[Prof. Michael Pal]

I will leave it to the honourable members to discuss motive and the political side.

I don't think there is a reason to make people wait until the election period. You asked at the beginning of your question whether the system was broken. I don't believe it was.

The two problems were that some people's ballots were coming in too late. I think Mr. Kingsley said that was about 1,000. I don't know the exact number, but that was an issue. Sometimes Elections Canada would send ballots to the wrong address, because they sent it to the address they had on file and someone had subsequently moved to a different address overseas. I don't see how this bill addresses that while also making voting accessible for people who are overseas.

I don't believe the system was broken. It could have been tweaked in some small ways. Absolutely, we should always try to improve the democratic process with the idea of making it as accessible as possible. Why not allow people to register whenever they can and whenever they want? People lead busy lives. We have a crisis of democracy in this country, I think. Not enough people are voting or engaged. Why not try to facilitate the engagement of people, rather than making it more difficult?

[The Vice-Chair, NDP, Alexandrine Latendresse]

Thank you very much.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you very much for your answers. I appreciate it.

Thank you, Madam Chair.

[The Vice-Chair, NDP, Alexandrine Latendresse]

Mr. Simms, you have the floor for seven minutes.