Text of the speaking notes for Chief Electoral Officer Marc Mayrand's appearance before the Standing Committee on Procedure and House Affairs:
Thank you, Mr. Chair, and good afternoon.
Bill C-23 is a very important piece of legislation that touches upon practically every aspect of the electoral process. In this regard, it is the most comprehensive reform of the Canada Elections Act since it was completely overhauled in 2000.
I would be less than transparent, and I would not do service to parliamentarians, if I did not share the full extent of my concerns with respect to the measures presented in Bill C-23, as well as those that, in my view, are missing. Of course, there are positive elements in the bill, as well as a range of technical improvements and clarifications that follow some of my previous recommendations. Unfortunately, Bill C-23 also includes measures that, in my opinion, undermine the bill's stated purpose and will not serve Canadians well. Given the limited time available, I will focus on the aspects that I find most problematic. My officials will be available to provide a more comprehensive technical briefing to Members from each caucus.
The government has indicated that this bill will serve three main purposes: (1) improving service to electors, (2) providing clear and simple rules for everyone to follow and (3), most importantly, ensuring fair elections. In reviewing the bill today, I propose to look at it from the perspective of these three objectives to see whether and to what extent they are met.
Improving Service to Electors
When we speak of "service to electors" we must be careful not to let this terminology diminish in any way the importance of what is at stake.
It is the responsibility of Parliament to provide – and it is my responsibility to administer – an electoral process that is accessible to all who wish to exercise their constitutional right to vote. Election day should be a time, and it may be the only time, when all Canadians can claim to be perfectly equal in power and influence, regardless of their income, health or social circumstances. This can only be so if voting procedures are designed to accommodate not only those of us with busy schedules, but also, and even more importantly, the more vulnerable and marginalized members of society.
Bill C-23 proposes to modify voter identification rules by eliminating vouching and prohibiting the use of the voter information card – the VIC – as one of the documents that could be used to establish the elector's address.
We should keep in mind that it is only since 2007 that the law imposes on electors the obligation to provide evidence of their identity as well as of their address before they are allowed to vote. Currently, they can do this in one of three ways:
- First, they can present a government-issued piece of ID that includes their photo, name and current address. In practice, this option is primarily limited to a driver's licence. Approximately 86% of adults in Canada have a licence. This means that approximately 4 million do not have one, including 28% of individuals over 65.
- Electors who don't have a driver's licence can produce two authorized pieces of ID, one of which must show their current residential address. While there are 38 authorized pieces of identification, only 13 may include a current address.
- Finally, an elector without ID may, subject to certain requirements, be vouched for by another elector who has proper identification.
Experience since 2007 shows that most Canadians do not have a problem complying with ID requirements. For some electors, however, this is a challenge, especially with respect to proving their current address. This is particularly true of young electors, First Nations electors on reserve and seniors. Their main challenge is not in proving who they are, but in providing documentary proof of their current residential address. Let me give you some examples:
- In the case of seniors, it is not uncommon for one of the spouses to drive and to have all the bills in their name. Right now, the other spouse can be vouched for by his or her partner. Similarly, seniors living with their children often must be vouched for by one of their children in order to be able to vote.
- The reverse is also true. Young Canadians often live at home or, as students, move frequently. They sometimes have no documents to prove their current residential address.
- First Nations electors on reserve also face challenges, as the Indian Status card does not include address information.
For many of these electors, vouching by another elector is the only option. Expanding the list of ID documents will not assist them in proving their address. The Neufeld report estimates that approximately 120,000 active voters in the last election relied on vouching, and we can expect that a significant proportion of them would not be able to vote under the rules proposed under Bill C-23.
It has been pointed out that vouching is a complex procedure, and that numerous procedural irregularities were found to have been committed at the last general election in connection with vouching. It is critical to understand that, as recognized by the Supreme Court of Canada, the vast majority of these were strictly record-keeping errors by poll workers documenting the vouching process – not fraud or even irregularities that could compromise an election. There is no evidence tying these errors with ineligible electors being allowed to vote.
Of course, vouching procedures should and can be simplified, as recommended by Mr. Neufeld. The need to rely on vouching should also be reduced. This is why Mr. Neufeld recommended expanding the use of the voter information card as an authorized document.
It is worth noting that the VIC is the only document issued by the federal government that includes address information. The Canadian passport, for example, does not include an address. In fact, with an accuracy rate of 90%, the VIC is likely the most accurate and widely available government document. The VIC is based on regular updates from driver's licence bureaus, the Canada Revenue Agency, Citizenship and Immigration Canada, vital statistics registrars as well as provincial electoral agencies. During the election period, revision activities at the local level also increase the accuracy of the VIC. This likely makes it a more current document than the driver's licence, which is authorized by law and used by the vast majority of voters.
The VIC was authorized for voters in certain locations in 2011 based on the evaluation of the 2008 election, which showed that for some electors, even vouching is not an available option.
For example, seniors who live in long-term care facilities (and who vote there) do not have drivers' licences, hydro bills or even health cards, which are typically kept by their children or facility administrators. By law, they cannot be vouched for by other residents in the same poll who also lack adequate ID; and they cannot be vouched for by staff who do not reside there. In most cases, they can rely on a letter of attestation issued by facility administrators (combined with another document, such as an ID bracelet). But some administrators feel they do not have the resources to issue such letters and, in fact, refuse to do so. For electors in that situation, the only document establishing their address is their voter information card.
It is essential to understand that the main challenge for our electoral democracy is not voter fraud, but voter participation. I do not believe that, if we eliminate vouching and the VIC as proof of address, we will have in any way improved the integrity of the voting process. However, we will have taken away the ability of many qualified electors to vote.
Clear and Simple Rules
A second objective of Bill C-23 is to provide clear and simple rules for everyone to follow. The importance of this objective should not be understated. Clear and simple rules are critical for Canadians to exercise their rights and be confident in the fairness of elections.
Bill C-23 provides for a regime of guidelines and advance rulings. I believe that this is an improvement to the Canada Elections Act. Such regimes exist in other statutory schemes, including in the context of elections, and they can be of benefit to both regulated entities and the regulator.
That said, I regret to say that the current proposals, as drafted, do not provide a workable approach. Rulings are required within unreasonably short timelines, and there is little rigour imposed on the process, unlike in other comparable schemes. It is imperative that amendments be made to these provisions to allow them to function effectively and achieve their intended purpose.
Bill C-23 also provides a harmonized and simplified regime for unpaid claims and loans. This is another important improvement.
However, I must alert this Committee to a technical difficulty that could seriously undermine the regime as it applies to nomination and leadership contestants. This difficulty relates to the Act's definition of leadership and nomination campaign expenses. As drafted, leadership contestants could easily and legally exclude most if not all of their expenses and funding from the statutory regime. Unless this loophole is removed, the new loans regime as it applies to leadership campaign expenses will remain an empty shell.
Fairness and Integrity
The third lens through which Bill C-23 must be examined is its impact on the fairness and the integrity of elections. Indeed that is the very title of Bill C-23.
In Canada, electoral fairness has traditionally been understood to mean maintaining a level playing field among parties and candidates by the imposition of strict spending limits. By increasing those spending limits and, most significantly, creating an exception for certain fundraising expenses, Bill C-23 may well compromise the level playing field.
The fundraising exception is of particular concern in this regard. For anybody who has ever seen one, there is no practical way of distinguishing a fundraiser mail-out from advertising, and it takes little imagination to understand that other partisan communications can be dressed up as fundraisers. Just as importantly, it will be difficult if not impossible to enforce in the absence of any obligation to report, or even keep, phone records of the persons contacted.
In terms of compliance, Bill C-23 would subject political parties to an external compliance audit for the verification of their financial returns. External audits are not a bad thing – they may reassure the chief agents of the parties and improve compliance in some instances, as long as proper records are kept to allow for a truly rigorous compliance audit. However, external auditors should be bound by guidelines issued by Elections Canada to maintain the coherence of the system.
Even so, it is striking when looking at provincial regimes that we remain the only jurisdiction in Canada where political parties are not required to produce supporting documentation for their reported expenses. At every election, parties receive $33 million in reimbursements without showing a single invoice to support their claims. This anomaly should be corrected, as I have indicated in the past (and as was recognized by a motion in the House of Commons).
Finally, Bill C-23 would make several changes to the enforcement regime. It would:
- create a number of new offences and increase fines;
- introduce registration and data retention measures for voter contact services; and
- place the Commissioner of Canada Elections within the Office of the Director of Public Prosecutions.
It is not clear to me how this last structural change can improve the Commissioner's work or the confidence of Canadians. It is important for parliamentarians as well as for Canadians to understand that, under the current regime, the Commissioner enjoys complete independence from the Chief Electoral Officer in deciding whether and how to conduct his investigations. The Committee may want to hear from the current as well as the former Commissioner in this regard.
I note that, in the future, the Commissioner would not be able to issue reports except through the Director of Public Prosecutions, and that he, like myself, would be severely limited by the terms of Bill C-23 as to what he could say publicly. As a result, it would be difficult for him to explain publicly why charges could not be laid in a particular case because of problems with how a provision of the Act is drafted. The bill would also restrict his ability to issue a press release or report reassuring Canadians that, having looked into allegations of voter fraud, he found no evidence of improper conduct.
I also note that Bill C-23, as currently drafted, does not provide any clear authority for the Commissioner to obtain information from Elections Canada, either at his request or at the agency's initiative. Such exchanges are, of course, absolutely essential for the enforcement of the Canada Elections Act.
Nevertheless, the most important issue for me is not where the Commissioner sits, but whether he has the proper tools to do his job in a timely and efficient manner. In previous reports, both I and the Commissioner have indicated that this is not the case right now, and that important changes to the law are required if we are to preserve the confidence of Canadians in the integrity of the electoral process.
In this regard, the bill includes registration and data retention measures for voter contact services, which reflect in part my recommendations. I am disappointed, however, that the bill does not require records to be kept of the actual telephone numbers used in voter calls. Without such information, investigations will continue to be significantly hampered.
Most importantly, under Bill C-23, the Commissioner still will not have the ability to seek a court order compelling witnesses to testify regarding the commission of offences, such as deceptive calls or other forms of election fraud. The response of Canadians in the face of the robocalls affair has been overwhelming. Canadians rightfully expect that such conduct, which threatens the very legitimacy of our democratic institutions, be dealt with swiftly and effectively. Without a power to compel testimony, as exists in many provincial regimes, the Commissioner's ability to carry out his investigations will remain limited.
Finally, other recommendations that I have made are not reflected in Bill C-23. Political parties maintain large databases on electors, but are not subject to the most basic rules governing the protection of personal information, and are in no way accountable for ensuring that their data holdings are not misused. Under Bill C-23, parties would now be given records showing which Canadians voted and which did not. In my view, this is information that should not be collected by political parties. But if it is to be recorded, it becomes all the more important that the rules ensure the information is properly safeguarded and not misused.
All in all, when looking at the proposed changes in relation to enforcement, the bill does not address the most pressing expectation of Canadians for timely and effective investigations.
I will conclude by reiterating the importance of carefully reviewing Bill C-23. As the Chief Justice of Canada wrote, "the right of every citizen to vote, guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms, lies at the heart of Canadian democracy."
Because amendments to the Canada Elections Act affect the fundamental rights of all Canadians, as well as the rights of all political parties, it is particularly important that, to the fullest extent possible, such amendments be based on a broad consensus as well as solid evidence.
I am very preoccupied in this regard with the limitations Bill C-23 imposes on the ability of my Office to consult Canadians and disseminate information on electoral democracy, as well as to publish research. I am unaware of any democracy in which such limitations are imposed on the electoral agency and I strongly feel that an amendment in this regard is essential.
In my remarks, I have highlighted what I see as the main areas of concern and suggested some ways of improving the measures contained in this bill.
With the Committee's permission, I would like to submit a table that sets out, in a more comprehensive way, the improvements that I recommend being made to the bill. Some of the changes are in fact purely technical; they are meant to address what I believe are simply drafting errors and unintended consequences. Others relate to substantive matters that warrant the Committee's attention, some of which, as I have stated, are fundamental. I trust that this will assist the Committee in its review of the legislation.
Thank you, Mr. Chair. I would be pleased to answer any questions.