PROC Committee Report

As a result of the Supreme Court of Canada’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (“Sauvé”), all prison inmates who are otherwise eligible to vote in a federal election may vote regardless of the length of their sentences. The Court struck down the provisions of the Act which denied the right to vote to inmates serving sentences of two years or more. The government, however, has not tabled legislation to put in place a voting process to facilitate voting for these inmates, most of whom are held in federal institutions. The Act currently only authorizes a process in provincial institutions. The Chief Electoral Officer has had to rely on his power of adaptation in section 17 of the Act in each election held since the judgment in Sauvé to enable these inmates to vote. He seeks an amendment to the Act explicitly authorizing him to establish a process for voting in federal institutions.

The majority of the Committee endorses this recommendation.

Section 11(d) of the Act prohibits voting by persons who have been absent from Canada for a period exceeding five consecutive years. The Chief Electoral Officer recommends removing this limitation for persons who intend to return to Canada as residents. He is of the view that this provision deprives these individuals of the right to vote and could be contrary to section 3 of the Charter of Rights and Freedoms, in light of the Sauvé judgment of the Supreme Court of Canada.

The majority of the Committee agrees that the five-year limitation period is arbitrary and should be removed. It would, however, go further, and propose that all Canadian citizens who are absent from Canada should be able to vote in accordance with Part 11 of the Canada Elections Act. The requirement that there be an intention to return to Canada should be dropped.

Currently, the special voting rules in sections 231 to 243.1 of the Canada Elections Act allow voting by special ballot only in four cases: electors temporarily residing outside Canada, Armed Forces electors, incarcerated electors, and electors residing in Canada. The procedures established for special ballots effectively exclude many electors who may be unable to exercise the vote, such as persons unexpectedly admitted to hospital in the days leading up to polling day. The Chief Electoral Officer calls for a far-ranging review of these rules to consider whether they are appropriate in light of changing technologies and expectations.

The Committee agrees that greater use of special ballots would facilitate voting. This would be consistent with our earlier support for other recommendations, such as more flexibility in advance polls. We have noted that particular problems arose in the far North. For all of these reasons, the Committee endorses the Chief Electoral Officer’s call for a wide-ranging review of the Special Voting Rules.

The Canada Elections Act currently provides that a prosecution of an offence under the Act must be initiated within 18 months of the Commissioner of Canada Elections becoming aware of the facts that gave rise to the prosecution. There is an absolute limit of seven years from the date the offence was committed. The Chief Electoral Officer recommended extending the second limitation period to ten years.

Clause 59 of Bill C–2 would amend section 514(1) of the Act and extend the time limit within which a prosecution may be initiated by the Director of Public Prosecutions to five years from the date on which the Commissioner of Canada Elections becomes aware of the facts that gave rise to the prosecution. The absolute limit within which to initiate a prosecution is extended to ten years. The Committee supports the proposal in principle, but is concerned about enforcement of the Canada Elections Act generally. Changes in the limitation period, by themselves, will not rectify this concern. In light of the proposed amendment contained in Bill C–2, the Committee does not need to comment further on this recommendation.

This issue has been addressed by Bill C–4, which received Royal Assent on May 11, 2006.

Voters can currently update their voter registration between elections through their income tax returns, by consenting to have their names, addresses and birth dates forwarded to Elections Canada. This enables the National Register of Electors to be updated on a regular basis. Currently, this arrangement has been achieved through an administrative agreement with the Canada Revenue Agency. The Chief Electoral Officer seeks express statutory authority for this practice. The Chief Electoral Officer further recommends amendments to the Canada Elections Act and the Income Tax Act to revise the electoral consent box on tax returns to provide for an express statement of citizenship. The Canada Revenue Agency has indicated that there may not be sufficient legal authority to share citizenship information. Such an amendment is seen as necessary to overcome the problem of non-citizens consenting to have their personal information forwarded to Elections Canada for inclusion on the National Register of Electors. There are insufficient assurances that tax filers who consent to having their personal information sent to Elections Canada are in fact Canadian citizens. An analysis of data by Elections Canada revealed that significant numbers of these individuals were not Canadian citizens.

The Committee agrees with this recommendation. The use of a consent box on income tax forms has proved useful, and there should be express statutory authority for the arrangements between the Canadian Revenue Agency and Elections Canada. Moreover, an express statement of citizenship on the tax form would be beneficial, for the reasons set forth by the Chief Electoral Officer. If there is any doubt as to whether there is sufficient legal authority to share citizenship information, this should be clarified in the legislation. During her appearance before the Committee on June 14, 2006, the Privacy Commissioner indicated that if the elector consents to the collection and use of the information for electoral purposes, the use of the information for those purposes would not be objectionable on privacy principles.

The Chief Electoral Officer has recommended an amendment to the Canada Elections Act to provide express statutory authority to enable Elections Canada to obtain personal information about deceased tax-filers, where the deceased had consented, in order to update the National Register of Electors.

The Committee supports this recommendation. It notes, however, that this change will not address the larger problem of duplicative names and other names that ought to be removed from National Register of Electors.

Sections 48(2) and 49(1) of the Canada Elections Act require an elector’s signed certification that he or she is an elector. The Chief Electoral Officer recommends that this requirement be replaced by a general authority to refuse to add a person to the Register of Electors unless the Chief Electoral Officer is satisfied that the person is qualified to be an elector.

The Committee considered this issue under the general issue of the accuracy and integrity of the National Register of Electors. The Committee does not support this recommendation.

Sections 101(a) and (b) of the Canada Elections Act provide that where a revising agent visits the residence of an elector for the purpose of adding a voter’s name to the preliminary list of electors, proof of identity is required from the elector or another elector living in the same residence. The Chief Electoral Officer recommends that the provision be amended so that identity may be established by a written affirmation from the elector where proof of identity is not available. The rationale for this recommendation is that the presence of the elector at his or her residence affords a degree of certainty in establishing identity.

The Committee does not support this recommendation. Members are concerned that this proposal does little to enhance the accuracy and integrity of the Register of Electors or the permanent list of electors.

Section 101(6) of the Canada Elections Act provides that a returning officer may record an elector’s intra-district change of address upon the elector providing adequate proof of identity and residence. Where the voter has moved to a new district and wishes to be added to the list of electors in the new district, the process is more cumbersome and administratively more demanding. The elector must apply to the returning officer for the new district by completing a prescribed registration form. The Chief Electoral Officer recommends that the simplified process be available for both intra- and inter-district changes of address.

The Committee rejects this recommendation on the basis that it is not convinced that it will achieve the goal of enhancing the integrity and accuracy of the National Register of Electors.

The Chief Electoral Officer seeks greater flexibility in determining when to issue voter information cards. Currently, they are to be sent as soon as possible after the issuance of the writ, but not later than the 24th day before election day. The Chief Electoral Officer notes that while this process functions well, greater flexibility is needed to avoid situations where cards are required to be issued before all the information required on the card is gathered (polling station, advance polling station, dates and hours of voting).

The Committee agrees that the current system works well, and is not prepared to support this change. We address the larger issue of the inadequacies of, and the potential for abuse in, the use of voter information cards in section 6.3 of this report.

The Chief Electoral Officer recommends amending section 107(2) of the Canada Elections Act to require that a voter’s year of birth be indicated in the official lists of electors for each regular and advance poll. The Chief Electoral Officer has expressed concern about discarded voter information cards being used by persons not eligible to vote or persons whose name does not appear on the cards. A year of birth could be used as a cross-reference to assist in identification of the person purporting to be the person whose name is listed in the voter information card.

The Committee would go further and recommend that the lists should include the date of birth — not just the year of birth — of electors. This information would be available to election officials and to candidates’ representatives at the polls. The majority of the Committee believes that this information should not appear on the lists provided to candidates or parties under the Act. Persons who have inadequate identification could be asked to provide their date of birth, and this could be checked against the official list for the purpose of validating their identity.

This issue raises broader questions about voter identification at the polls. The Committee discusses these at length in section 6.1 of this report.

Section 46 of the Canada Elections Act authorizes the Chief Electoral Officer to draw upon various sources of information to update the National Register of Electors, including:

• information that electors have provided to him,
• information held by government departments where the elector consents to the release of that information, and
• information collected pursuant to provincial statutes listed in Schedule II of the Act, provided the elector consents to the release of that information.

Not all of the information from these sources may be incorporated into the National Register of Electors. Information such as a driver’s licence number and vital statistics, for example, may not be used. The Chief Electoral Officer seeks an amendment to permit him to incorporate such information in the National Register of Electors.

The majority of the Committee supports this recommendation, believing that such an amendment would be potentially useful as a means to enhancing the accuracy of the Register. Some Members, however, had concerns about the scope and open-endedness of the information that would be retained. The Privacy Commissioner indicated that the retention of information that is collected and used solely for electoral purposes is unobjectionable, so long as safeguards are in place and modern data protection protocols are observed.

The Chief Electoral Officer recommends amending section 56(e) of the Canada Elections Act to permit the release of personal information about individual voters from the National Register of Electors where, in his opinion, this is necessary in the interests of public health, safety and security. Currently, the Act only permits the release of such information for electoral purposes.

This proposal provoked considerable debate in the media and was criticized by various groups when the Chief Electoral Officer’s report was issued in September 2005. The Committee’s discussion echoed many of the concerns about protecting the privacy of personal information held by the Chief Electoral Officer and restricting the use of information collected for electoral purposes to those purposes alone. For these reasons, the Committee rejects this recommendation.

The Chief Electoral Officer recommends amending sections 110 and 111 of the Canada Elections Act to permit parties and Members of Parliament who are provided with lists of electors to share the information with other Members of Parliament and with registered electoral district associations of the same party. Currently, restrictions are placed upon Members on the use that may be made of lists of electors provided to them or their constituency associations. They can only use the list to solicit contributions and party memberships and communicate with electors within their own electoral district. They may not make use of lists held by other Members of Parliament or the party to communicate with electors in other electoral districts, nor can they share the list with other Members or the party.

The Committee is not persuaded that the expanded use of this information would significantly enhance a Member’s capacity to serve his or her constituents. Some Committee members noted the potential for abuse in the use of such information. The Committee does not support this recommendation.

The Chief Electoral Officer recommends amending section 46 of the Canada Elections Act to authorize the Chief Electoral Officer to assign unique identifiers to each registered elector on the National Register of Electors. This identifier would be included in the lists of electors sent to political parties, candidates and Members of Parliament. A corollary recommendation would prohibit the use of the unique identifiers for purposes other than updating the Register or a federal or provincial electoral list.

The New Democratic Party, the Conservative Party, the Bloc Québecois and the Green Party expressly supported the idea of unique identification numbers for voters. Although the Privacy Commissioner had some reservations about assigning numbers to individuals, she was satisfied that privacy concerns could be addressed if random numbers were used and there was a distant relationship from government. The Committee, moreover, rejects the idea of using Social Insurance Numbers as identifiers, since a considerable amount of highly personal information is associated with these numbers.

The Committee supports both recommendations as they have the potential to contribute towards enhancing the accuracy, integrity and usefulness of the National Register of Electors and electoral lists.

The Chief Electoral Officer repeats a recommendation made in an earlier report, Modernizing the Electoral Process (2001) to amend sections 45 and 109 of the Canada Elections Act to permit the distribution of voters’ lists to eligible parties and to registered parties for electoral districts in which they did not run a candidate in the previous election. The current provisions are perceived as inequitable and contrary to the decision of the Supreme Court of Canada in Figueroa.

As the Committee’s discussions demonstrated, this proposal raises a number of difficult issues and concerns, and, accordingly, we are not prepared to support it until such time as the Committee has had an opportunity to engage in a broader discussion.

An amendment is sought to the Canada Elections Act to enable returning officers to provide an updated list of electors following the close of nominations, in electronic format, by the 19th day preceding election day.

The Committee supports this recommendation, as it will help to ensure the accuracy and currency of voting lists, and assist candidates in their campaigning.

The Canada Elections Act does not authorize the transmission of a preliminary list of electors in an electoral district to registered or eligible parties upon the issuance of an election writ. Parties must use the lists provided on an annual basis under section 45 or obtain a copy of a list from the party-endorsed candidate in the district. The Chief Electoral Officer seeks statutory authority to issue a preliminary list of electors to the registered and eligible parties to ensure they have current and accurate voter information in a district.

The Committee supports this recommendation.