Procedure and House Affairs Committee on June 2nd, 2015

[The Chair, Conservative, Joe Preston]

We can start our meeting. We are still looking at our order of reference on Bill C-50.

We have with us today—is it Professor Frank?

[Prof. Gillian Frank, Lecturer, Department of Religion and Visiting Fellow, Center for the Study of Religion, As an Individual]

Yes, Professor Frank is fine.

[The Chair, Conservative, Joe Preston]

Super, thank you.

Ambassador Chapuis, you're also here today.

Our tradition, Mr. Frank, when we have somebody online with us on a teleconference is that we let them go first in case we ever lose them.

Before we get started today, one of our members has a point of order. Is that right?

[David Christopherson, NDP, Hamilton Centre, ON]

It's an issue for the committee that I'd like to raise.

[The Chair, Conservative, Joe Preston]

Go ahead, Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Apologies to our guests. Hopefully it will only take a moment.

We all received notification from the clerk that reads as follows: “Please find enclosed an order in council appointment, which was referred to the committee on Friday, May 29, 2015, pursuant to standing order 110(2). Under standing orders 110 and 111 the committee may call a nominee to appear before it during a period not to exceed 30 sitting days from the tabling date in order to examine the qualifications and the competence of the appointee to perform the duties of the post to which he or she has been appointed.”

Given that when there was a new law clerk we used that same clause to invite them in, I move that we invite the new Speaker of the Senate in, since that's the appointment that's referred to here.

[The Chair, Conservative, Joe Preston]

I received it yesterday also, David, and I was checking into precedent. Has this committee ever vetted the Speaker of the Senate? If you give me a day or so to finish that work and then find a time, if indeed it has happened, I will bring it back to the committee.

[David Christopherson, NDP, Hamilton Centre, ON]

May I ask a question? My understanding is that it's allowed under the rules. Whether we've done it or not is a point of debate but I'm not sure whether it's a point of order to determine whether or not the motion is in order and should be voted on or not, Chair.

[The Chair, Conservative, Joe Preston]

Are you moving a motion that we do that?

[David Christopherson, NDP, Hamilton Centre, ON]

Yes, I am.

[The Chair, Conservative, Joe Preston]

Your chair is advising you that before I rule on that motion, I'd like to do a little research. If you don't mind, I can come back to you at Thursday's meeting and tell you what I found out.

[David Christopherson, NDP, Hamilton Centre, ON]

That's fair. Yes, that's fine.

[The Chair, Conservative, Joe Preston]

Okay, we'll leave it until then.

Mr. Lukiwski, on that point....

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

Just to support what you were saying, I think we have to take a look at the constitutionality of this. I appreciate the fact that you are going to do some background research and come back to us.

[The Chair, Conservative, Joe Preston]

That's great. We'll make a ruling then.

Thank you, Mr. Frank and Ambassador. We're happy to have you here today on Bill C-50.

Go ahead, Mr. Frank. If you have an opening statement we'd like you to start with that. We'll then do an opening statement from the ambassador, and then we'll have a round of questions from the members.

Also, members I will have to leave at about a quarter to noon. My more-than-able vice-chair will be taking over the chair at that time so it should be seamless.

Mr. Frank, please go ahead with your opening statement.

[Prof. Gillian Frank]

Mr. Chair and members of the committee, thank you for the opportunity to speak with you today.

In March 2011, I learned that I was no longer eligible to vote when I attempted to obtain a special ballot through the Elections Canada website. I discovered that because I had lived outside of Canada for more than five years, I could not participate in the then-upcoming election. I had moved to the United States in 2001 to pursue a Ph.D. Under previous interpretations of the rules, my regular visits to Canada had reset the clock, thereby allowing me to retain my right to vote.

In 2011, I was a post-doc at Stony Brook University where I taught an undergraduate course on the history of civil rights movements in the United States. The irony was not lost upon me that while I was teaching my students about the struggles of individuals and groups to apply their citizenship to the fullest of its means, and to press forward persistently for freedom and democracy and the removal from their society of any forms of second-class citizenship, I was unable to vote anywhere. Essentially, I was teaching my students about people who had far less privilege than me who understood a basic truth: that enfranchisement is a basic recognition of citizenship. The right to vote empowers and dignifies citizens.

If the committee is interested, I can take you through the details of the various attempts I have made, along with others, to ask the government to restore expat voting rights, but I want to rest upon one detail. At the beginning of our effort, we attempted to petition Parliament to ask for redress, only to learn that Parliament does not recognize petitions from non-residents. In other words, until recently I had no vote and no means of petitioning my own government while living abroad.

Over the past four years, I have heard from many Canadian expats from around the world who shared my desire to have their voting rights restored. We believe that democracy, like the Canadian flags we wear on our backpacks, should travel abroad with us. Like me, these expats are likewise concerned about Bill C-50, which they see as an attempt to disenfranchise us.

Because of the tenaciousness and support of our lawyer, Shaun O'Brien, the generosity of her law firm, Cavalluzzo Shilton McIntyre Cornish, and the wisdom of Justice Penny's 2004 decision, we saw vindicated our conviction that the right of every citizen to vote was at the heart of Canadian democracy. Each citizen must have the opportunity to participate in the selection of elected representatives.

Justice Penny wrote the following:

...the government is making a decision that some people, whatever their abilities, are not worthy to vote—that they do not “deserve” to be considered members of the community and hence may be deprived of the most basic of their constitutional rights. But this is not the lawmakers’ decision to make. The Charter makes this decision for us by guaranteeing every citizen’s right to vote and by expressly placing all citizens under the protective umbrella of the Charter through constitutional limits on the power of the government to limit a citizen’s right to vote.

When I learned of Justice Penny's decision last year, I was elated. I am, however, dismayed at Bill C-50, which threatens to undermine much of our hard work over the past four years. I therefore offer the following to the committee.

Bill C-50, as it is currently written, violates the spirit of Justice Penny's rulings and attempts to perform an end-run around them. It adds onerous requirements by creating a narrow timeframe to submit burdensome paperwork. These new requirements make it more difficult for most expats and impossible for others to vote.

I am directly impacted by the ID requirements. I no longer have my Ontario driver's licence, which was my sole Canadian document listing both my former address and containing a photo. I had to turn this in upon obtaining a driver's licence in the U.S. I have no doubt that the overwhelming majority of my expat peers in the United States are in a similar position.

While I can probably secure some other forms of documentation, I now have to go through a process that is unnecessarily time-sensitive, time-consuming, and subject to the unpredictable schedule of post offices in Canada and the United States. I wonder why the government is not seeking to make voter registration easier, less time-sensitive, and more accessible. Rigour and access need not be mutually exclusive.

In my course on the history of civil rights, we studied in detail the history of voter suppression. A favoured tactic to thwart further registration, we saw, was the use of bureaucratic red tape to create administrative roadblocks that were justified in the name of protecting the integrity of the system, electoral fairness, or maintaining the democratic process.

Such justifications offered a respectable veneer to those who were actively undermining the democratic process by requiring frequent re-registration, registration at inconvenient times, provision of information unavailable to many targeted voters, and so forth. It also sent a strong message to targeted segments of the population that their vote is not welcome. I fear that by attempting to accomplish administratively what can no longer be accomplished since our recent court victory, Bill C-50 falls squarely within this inglorious tradition.

Over the past four years, reporters have asked me to justify my right to vote. My answer is simple. I am a Canadian citizen and want to have the right to exercise my citizenship to its fullest capacity. I also point out to these same reporters that it is the politicians who are attempting to limit constitutional rights who deserve far more scrutiny than those asking for access to their constitutional rights.

In closing, I wonder why my own government is so determined to spend so much time, money, and energy disenfranchising expat Canadians. Other witnesses have generously suggested that this legislation is a solution in search of a problem. I would merely ask who stands to benefit from making voting so difficult for so many Canadian citizens.

Thank you for allowing me to make these remarks.

[The Chair, Conservative, Joe Preston]

Thank you very much, Mr. Frank. We will hear from the ambassador, and then the group will ask questions.

Ambassador, please go ahead with an opening statement.

[H.E. Nicolas Marcel Jacques Chapuis, Ambassador of France to Canada, Embassy of France]

Mr. Chair, I would like to thank the committee for inviting me to speak about the French experience. I will be as brief as possible, and I will then answer your questions.

Since the Fifth Republic in France, in other words since 1958, the constitution has allowed all French citizens living abroad to participate, in appropriate forms, in all polls nation-wide at the local, regional and national level. This may be the election of the president of the Republic, or the election of parliamentarians, legislative elections, elections of regional councillors, elections of general councillors—now called departmental councillors—or municipal elections.

As a result of this constitutional provision, the act that allows French citizens abroad to vote is very favourable to the voter, as it is in France, as well. In other words, no distinction is made between a French citizen living abroad and a French citizen living on the national territory.

There are about 2 to 2.5 million French citizens living abroad, and they are eligible to vote in all national elections, including presidential elections, legislative elections, European elections and in referenda at polling stations at their embassy or consulate. They can also vote in elections for French citizens living abroad because we do have local representation for them in each country.

To be able to vote abroad, the French expat must be registered on a consular electoral list. These lists are open in diplomatic and consular posts. To be able to vote for one year starting on January 1, the citizen must have registered prior to December 31 of the previous year. This registration on the electoral list is facilitated by registration on the registry of French citizens resident outside France, a national registry open in all embassies. French citizens arriving in Canada, for example, need only register on the registry to be automatically added to the electoral list, unless they request otherwise. A French citizen may in fact decide to vote in France instead of at an embassy. Registering on the registry can be done by simply presenting proof of French citizenship, a piece of identification, proof of residence in the foreign territory and the residence permit issued by the country in question.

It should be noted that if for some reason the voter has not been registered on the electoral list and thinks there was an administrative error, the voter can seek recourse before an administrative tribunal in France up to the very day of the election. The tribunal must render a decision immediately on whether the claim is founded.

As I said, a French expat living abroad may ask to be registered on the electoral list of a commune in France, generally the last commune of residence. This is interpreted very broadly within French electoral law. In fact, a French citizen living abroad may ask to be registered in the commune of his or her parents, an ancestor or descendant, as long as there is a family link. If the individual is registered on the electoral list abroad and is on the list of these communes, the citizen may ask to vote in France at the local polls. In other words, the individual may be registered in two places.

If the person absolutely doesn't want to vote abroad, which is that person's right, including for local entities, the citizen can vote in France, either in person or by proxy.

Abroad, citizens can vote only at the ballot box or by proxy at the diplomatic post for presidential elections, European elections and the referendum.

For legislative elections, citizens can vote by Internet. This is an entirely new provision that was implemented for the first time for the 2012 elections, which elected the current Parliament and includes 11 French members living abroad.

That is what I wanted to say for my opening remarks.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much, Ambassador.

We'll go to Mr. Reid, for a seven-minute round, please.

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

Thank you to both of our witnesses.

This may seem like an odd juxtaposition, having an explanation of France's system of voting for expatriate citizens and a Canadian who has been dealing with his system, but it's actually convenient, because it lets me ask Professor Frank a question relating to the Canadian voting system by providing the context of the French system.

In Canada the vote is attached to a specific constituency. In fact, in Justice Penny's ruling, in paragraph 77, he makes a point of observing that the charter right to vote is for the member of Parliament for the electoral district in which the voter resides. Obviously, a non-resident doesn't reside in any district, and the assumption we've always made is that you remain, for electoral purposes, a resident of the district in which you last resided when you were last in Canada. Of course, district boundaries change, so you are attached to an address. We figure that the address you were last in is where you reside for electoral purposes. But the point is that the charter section 3 right is attached to a specific locale in order to spread all the votes between ridings across the country.

The system that France and some other countries, such as Italy, use is to say that electoral districts will be created that are outside of the country. There are actually representatives who serve in the national Parliament who represent districts that are not part of the territory of the country. They are representatives of the interests of electors in that particular district. Wikipedia has some convenient maps that actually show where the Italian districts are and where the French districts are. They don't overlap perfectly. I guess the distribution of Italian and French citizens outside of their respective countries is not identical.

Anyway, assuming there were no constitutional difficulties—and there might actually be constitutional difficulties because of the way the courts have interpreted section 3—what do you think of the idea of having some kind of extraterritorial electoral district for Canadians who live outside the country?

[Prof. Gillian Frank]

I would want to study the proposal in detail. I'm not good at answering yes or no to hypothetical issues. I would want to know how it works for those countries, so I would have to do a lot more study before I could give you an informed answer.

In theory, if it works well, if it empowers people, if it gives them access, then that might be a great avenue forward. But again, I would want to see more concrete details.

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

That's fair enough. What strikes me when I think about this is that on the one hand it resolves the problem of tying you to some previous address, which can be difficult to prove as time goes on. Your story of your driver's licence is actually a pretty typical story for a non-resident who formerly resided in Canada.

I used to live in Australia, and for the first three months I used my Canadian driver's licence. Then New South Wales law said that doesn't work anymore, so I had to get a New South Wales licence. I cannot remember where my Canadian driver's licence went, to be honest, so I get that problem.

The trouble is that we have a system that's set up on the basis of ridings, and that appears to me to be the nub of all the discussions that have gone on. We've had the Chief Electoral Officer in, for example, and the former chief electoral officer, and they're all trying to find fixes around this. This just struck me as being another way one could fix a problem.

On the other hand, as I say this I am aware of the fact that there might just be a constitutional impediment, which is insurmountable.

Let me ask another question, then. You mentioned insurmountable practical difficulties with regard to timing and so on. I know that as someone who has studied voting rights and the voting rights legislation in the United States you're very sensitive to this sort of thing. Can you tell me what the number one problem was at a practical level—there are many problems, but I mean the one that was the biggest impediment, in practice—to your exercising your franchise, other than the actual five-year limitation? It sounds to me as though overcoming this technically doesn't resolve your concern.

What's the number one thing that was a problem for you?

[Prof. Gillian Frank]

When I was applying for the ballot previously, the mail system was incredibly slow. I lived in Rhode Island at the time. You could send something from Toronto to Rhode Island and it might arrive in a day, it might arrive in a week, it might arrive in three weeks. It was unpredictable.

In the act of registering to vote, I worry about the efficacy of the mail system and about relying upon it not only for registration but for ballots. It concerns me greatly that you have a narrow time window within which to mail documents back and forth, perhaps in various iterations.

Say there's an error with the document. Say I send in a bank statement or a tax statement proving my residence and they say, “That one is not valid. There's a missing paper. We need to start from scratch.” I go through another reiteration, but perhaps between point A and election day it's still lost in the mail. An outside contingency—and this would be an outlier—is what happens if there's a mail strike somewhere in between.

When we rely upon this method and give it such a narrow window, we're setting the stage for a lot of people to be inadvertently excluded just by the slowness of the process.

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

Okay. Let's say for the sake of argument that the process was re-engineered to involve online registration and permitted dealing with the back and forth via emails, with scanned documents rather than having to send photocopies of documents, as one would do now. Electronic signature adds some level of security, but basically doing it that way. Would that make a significant difference from your point of view?

[Prof. Gillian Frank]

I suspect it would expedite it significantly. It would probably reduce costs to expats abroad as well, so I think that would be a start.

The biggest impediment is the narrow time window. I think I just heard the ambassador from France describing the registration as ongoing. When I think about this proposal, with its very narrow time window of when the writ is dropped, I have to ask where the fire is, to have the registration done just within that time. Why the continual re-registration? Why not any time between elections, for example?

I think the Internet would be a great way of moving forward, but I also think leaving an open window for registration and verification would be as well. We have more than a million expats abroad. Let's say even 10% of those try to register in that narrow time window. Who is on the other side doing all of that paperwork in a timely manner?