Procedure and House Affairs Committee on Oct. 18th, 2018

[The Chair, Liberal, Larry Bagnell]

Good morning. Welcome to meeting 127 of the Standing Committee on Procedure and House Affairs as we once again continue clause-by-clause consideration of Bill C-76, an act to amend the Canada Elections Act and other Acts and to make certain consequential amendments.

We are pleased to be joined by Jean-François Morin and Manon Paquet from the Privy Council Office, and Trevor Knight and Robert Sampson from Elections Canada.

Thank you for being here again. You're great members of this committee.

(On clause 320)

We will pick up where we left off last evening, clause 320.

Mr. Nater, could you present CPC-138.1, please?

[John Nater, Conservative, Perth—Wellington, ON]

Absolutely, Chair.

This provision reverts to the status quo in giving the election officer the ability to have a person removed or arrested for causing a disruption at a polling station. Bill C-76 simply envisions the power to order a person to leave, it doesn't have the arrest provision in it. We're recommending it be reverted to that provision, the ability to have an arrest made.

[The Chair, Liberal, Larry Bagnell]

Is there debate?

We'll hear Mr. Graham, and then Mr. Bittle.

[David Graham, Liberal, Laurentides—Labelle, QC]

In response to recommendations from the CEO itself, this bill.... Just for the record I'll read the recommendation.

B39 recommended that:

Section 479 of the Act provides the legislative framework for maintaining order at an RO office or at a polling place. This provision grants considerable powers, including forcible ejection or arrest of a person. But it is complex, calls for a difficult exercise of judgment, and requires election officers to perform duties for which they are not trained and likely cannot be adequately trained, given the extent of their current duties and skill sets. The potential risks arising from section 479 include violence and injury as well as violation of fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms. Local law enforcement officials are better trained and equipped to perform these functions.

While this section should continue to make it clear that the relevant election officer has the power to maintain order at the polls and may order a person to leave if the person is committing or reasonably believed to be committing an offence, the election officer's power of arrest without a warrant should be deleted. The subsections providing for the use of force and listing procedures in the event of an arrest should be repealed.

I think it's fairly important that we follow that recommendation. It's from the elections officer's report on the election, recommendation B39.

[The Chair, Liberal, Larry Bagnell]

Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It's the question of capacity. This is at an election station, a voter is becoming so disruptive that the election officials want to have him or her removed. What would the normal procedures be if this didn't exist? I'm going to imagine the opposite. If this amendment weren't here, what powers would they have? Simply call the police and wait?

[Robert Sampson, Legal Counsel, Legal Services, Elections Canada]

The practice right now, notwithstanding the provision in the act, is that we instruct election officials to call the police. This provision is somewhat anachronistic in that it predates the institution of police forces, for example.

It's one of the oldest provisions in the act and reflects a time when election administration was quite dispersed and elections could be administered in very remote areas. This version was updated somewhat to reflect the advent of the charter, but it still provides for extraordinary powers that we do not—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

You're including the advent of the charter in the charter of rights for the voter, even if they're being disruptive, or is it the charter rights of the election official?

[Robert Sampson]

For example, it requires a charter caution, so before you arrest them without a warrant you need to advise them of their charter rights. This isn't a practice that we encourage. We direct our election officials to call the police. To facilitate that process, one of the preparatory steps is a liaison between the returning officer and the local police force to make sure there is easy access in case of need.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

This is in advance of the election being conducting. Okay, that's great.

[The Chair, Liberal, Larry Bagnell]

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

An obvious question is this: When was the last time, to your knowledge, that this provision was used and an arrest would have been...?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I would take them all out of the polls, Chair, just because they don't know how to vote properly.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I'm just curious, what was the...?

[Robert Sampson]

I've been with Elections Canada on and off since 2013. To my knowledge, it hasn't been used.

Trevor is a bit more aged than me, so I will ask him if he is aware of its being used.

[Trevor Knight, Senior Counsel, Legal Services, Elections Canada]

I've been at Elections Canada since 2002. I'm not aware of its being used, certainly in the time I've been there. I don't recall of any cases being noted.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

You're saying it goes way back. Does it literally go back as far as the days when people were still pointing at the candidate they wanted as a way of indicating...? Are we talking that far back? I'm asking if that's when the provision came into effect. Did it go back that far, to the 19th century?

[Robert Sampson]

Yes, it goes right back to a time when it would be difficult, for example, to access a judge in order to secure a warrant. Hence the provisions allowing for arrest without a warrant.

As to the precise date and whether it's in the initial Dominion Elections Act of 1874, I don't recall. It is quite far back.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

That was an era when you didn't have a secret ballot and you pointed at the candidate you wanted while they stood in hustings. There were frequent fist fights and everybody was drunk. They were being paid for their votes with bottles of whiskey or rum, depending on the part of the country. Yes, it was a somewhat different era.

[The Chair, Liberal, Larry Bagnell]

I'll call the question.

(Amendment negatived [See Minutes of Proceedings])

Stephanie, could you present CPC-138.2, please?

[Stephanie Kusie, Calgary Midnapore, CPC]

This is in regard to maintaining the existing provisions allowing for persons committing ballot offences to be ordered to leave. Under the new legislation, these provisions are changing, and we believe that they should stay as they are at present.

[The Chair, Liberal, Larry Bagnell]

They're becoming less strong, the new provisions, is that what you're saying?

[Stephanie Kusie]

It's just that it's being removed. We're adding after line 19 on page 182:

In performing his or her duty under subsection (1) or (2), an election officer may, if a person is committing, in the returning officer's office or other place where the vote is taking place, an offence referred to in paragraph 281.3(a), section 281.5 or paragraph 281.7(1)(a) — or if the officer believes on reasonable grounds that a person has committed such an offence in such an office or place — order the person to leave the office or place or arrest the person without warrant.

We prefer the existing provisions, as they are.

[The Chair, Liberal, Larry Bagnell]

Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Again, in the instance where somebody is being disruptive at the polls, what does Bill C-76 allow for right now? If it were passed without amendment, what powers do returning officers have to have somebody removed?

I assume it's similar to what we just discussed, that they can call the police without warrant and have the person removed.

Is this necessary?