PROC Committee Report

Section 535 of the Canada Elections Act requires the Chief Electoral Officer, as soon as possible after a general election, to make a report to the Speaker of the House of Commons that sets out any amendments that, in his or her opinion, are desirable for the better administration of the Act. On September 29, 2005, the report on the 38th general election (June 2004) was tabled in the House. Entitled Completing the Cycle of Electoral Reforms, this report focused primarily on matters that are not related to the political financing reforms which came into effect on January 1, 2004 with S.C. 2003, c. 19 (Bill C–24). There was no opportunity to review this report and its recommendations prior to the general election being called on November 29, 2005.

As Members of Parliament, we are directly concerned with the electoral process, and have first-hand experience with the rules governing the conduct of elections. There have been two federal general elections within a short period of time — one on June 28, 2004 and the other on January 23, 2006. It is important that we use these experiences and the lessons learned to correct deficiencies and improve our electoral system. As we are currently in another minority Parliament, and the timing of the next general election is unknown, it is important that the necessary legislative changes are made in an efficient and timely manner. The Committee believes that a window of opportunity for legislative changes exists, and, for this reason, we have made the review of possible legislative amendments our priority over the past few weeks.

The Committee appreciates the assistance of Jean-Pierre Kingsley, the Chief Electoral Officer of Canada, and the staff at Elections Canada. Representatives of the recognized four parties in the House of Commons appeared before the Committee and provided important insights into the electoral system. The Committee also solicited suggestions from the other political parties registered under the Canada Elections Act, and appreciates the submissions that were received from the Marijuana Party, the Progressive Canadian Party, the Marxist–Leninist Party, and the Green Party. The Committee also solicited the views of other Members of Parliament and we appreciate their input into our deliberations. In addition, the Privacy Commissioner of Canada, Jennifer Stoddart, appeared before the Committee to discuss certain issues relating to privacy concerns, and we greatly appreciate her cooperation and submissions.

Canada’s electoral system generally works well, and is respected around the world. While there have been discussions about fundamental changes to our electoral system — such as introducing an element of proportional representation — these should not detract from the basic point that we have an electoral system of which we should be justly proud. The system, however, is not perfect, and can always be improved. In addition, there are certain specific areas where Members and others have particular concerns.

Three themes guided the Committee in its review of the Canada Elections Act and its deliberations over possible reforms: the integrity and accuracy of the National Register of Electors, voter identification at the polls, and voter fraud. Each of the recommendations considered below was reviewed and considered in light of these over-arching — and, to some extent, inter-related — themes. The integrity of the electoral process is fundamental to the effective functioning of a democracy. Without adequate safeguards to ensure that those who exercise the vote are in fact eligible to vote, to prevent fraudulent voting practices, and to ensure that eligible voters are not disenfranchised or impeded in their ability to vote, the entire electoral process is undermined.

In assessing the Canada Elections Act and possible amendments, the Committee took as its starting point the September 2005 report of the Chief Electoral Officer, entitled Completing the Cycle of Electoral Reforms. Many of the changes that he is proposing make sense and have the support of all members of the Committee. In other cases, the Committee is proposing slight adjustments to the changes that have been recommended. In the case of other recommendations, the Committee is not convinced of the need for the suggested changes, or disagrees with the proposals. The Committee has also considered other proposals for legislative changes from members of the Committee, other Members of the House of Commons, and from political parties registered under the Act.

The Committee believes that a more comprehensive review of the Canada Elections Act is warranted, and hopes to undertake this at an early opportunity.

A series of recommendations were made by the Chief Electoral Officer under this general heading. These recommendations are directed to facilitating and simplifying the nomination process prior to the issuance of a Notice of Election. The Chief Electoral Officer recommended:

1. a purely administrative and centralized nomination confirmation process through the Office of the Chief Electoral Officer, rather than through local returning officers;
2. a process to permit the person seeking a nomination to file a basic application himself or herself, without the need to obtain 100 signatures from electors in support of the application;
3. that nomination candidates be permitted to confirm their nomination status prior to the issuance of an election writ; and,
4. that the candidate confirmation process should be done through the office of the Chief Electoral Officer, rather than through local returning officers.

The Chief Electoral Officer’s rationale for this series of recommendations was to remove unnecessary complexity in the nomination and candidate confirmation process. All of the political parties that commented on this recommendation supported the advanced confirmation process, with the exception of the Marxist–Leninist Party. Representatives of the New Democratic Party, the Liberal Party, and the Conservative Party who appeared before the Committee also supported the elimination of the 100-signature requirement.

While the Committee is generally supportive of the overall aim of simplifying the process, it is concerned that centralizing the registration process would remove an important connection between nomination contestants or candidates and their constituencies, and undermine the role of the returning officer and local control of elections. The Committee is also not persuaded that the 100-signature requirement is irrelevant in the electoral process. Some Members considered the obtaining of 100 signatures a measure of the legitimacy of a nomination contestant’s candidacy. The Committee, therefore, supports only Recommendation 1.1(3), under which candidates could confirm their nomination status prior to the issuance of the election writ. It rejects the other recommendations.

For a number of years, the Chief Electoral Officer has been recommending that returning officers be appointed by him or her pursuant to a merit-based process and that returning officers be made employees of Elections Canada.

These reforms have been superseded by Bill C–2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, which would grant the Chief Electoral Officer the authority to appoint, and terminate the appointments of, returning officers. The Chief Electoral Officer will also be required to establish a merit-based process for the appointment of returning officers. The majority of the Committee recommends that this be done by means of a public competition.

The Chief Electoral Officer seeks statutory authority to pay all expenses relating to the administration and enforcement of the Canada Elections Act out of the unappropriated funds of the Consolidated Revenue Fund. Currently, funding comes from pre-authorized draws upon the Consolidated Revenue Fund and an annual appropriation vote. The Chief Electoral Officer considers that reliance on an annual appropriation vote does not enhance the effectiveness, efficiency and integrity of the electoral process.

This issue has arisen in the past, and the Committee has not been prepared to endorse the proposal. There is, in our view, an advantage in having the Office of the Chief Electoral Officer appear before the Committee annually to discuss the Main Estimates. We would also want to be assured that the Treasury Board and the Auditor General had no concerns before agreeing to such a change.

Currently, the Chief Electoral Officer may use the power under section 17 of the Canada Elections Act to adapt most provisions of the Act in cases of emergency or unforeseen circumstances. That power, however, can only be used during an election period. The Chief Electoral Officer has recommended that this power be extended for a period of 90 days after the return of the writ. The rationale for this recommendation is that much of the work in the elections process continues well past the election period.

The Committee understands that this provision may limit the flexibility that the Chief Electoral Officer may require to respond in a timely way to emergency situations after an election. The Committee, however, considers a 90-day extension period to be excessive. It recommends a 30-day extension of the adaptation power.

The Senate is currently accorded no role in the appointment of the Chief Electoral Officer, although it participates in the removal for cause of the Chief Electoral Officer. The Senate has suggested that it be given a role in the selection of the Chief Electoral Officer, given that it already has a mandate to review legislation respecting electoral matters, and that this would be consistent with the appointment procedures for other officers of Parliament.

Given that the Chief Electoral Officer is only responsible for overseeing the election of Members to the House of Commons, the Committee believes that the status quo is appropriate, and is not prepared to endorse the proposal that the Senate be given a role in the selection of the Chief Electoral Officer. If, in the future, there were to be federally-run elections for Senators, this issue could be revisited.

In the course of its deliberations on this question, the Committee briefly discussed the fact that the Chief Electoral Officer is currently appointed to hold office during good behaviour until age 65. It was noted that other officers of Parliament, such as the Auditor General, the Privacy and Access to Information Commissioners, and the Commissioner of Official Languages, are all subject to fixed term appointments. The Committee wishes to emphasize that the raising of this issue in no way reflects on the commendable work of Jean-Pierre Kingsley, the current Chief Electoral Officer. Members see both pros and cons in the current arrangements for the Chief Electoral Officer, and, therefore, make no recommendation at this time.

In the Chief Electoral Officer’s report, it is argued that the Office of the Assistant Chief Electoral Officer serves no particular statutory mandate and performs no operational role, other than what may be assigned by the Chief Electoral Officer. It is also stated that there is no statutory purpose behind the requirement that the Assistant Chief Electoral Officer be appointed by Order in Council; indeed, it is suggested that as a Governor in Council appointee, the appointment process of the Assistant Chief Electoral Officer undermines the perceived impartiality of Elections Canada. The Chief Electoral Officer recommends that the Canada Elections Act be amended to remove the Office of the Assistant Chief Electoral Officer.

The majority of the Committee is not prepared to support this recommendation.

Revising agents assist returning officers and assistant returning officers in the registration of electors during the revision period leading up to polling day. Currently, revising agents are selected by returning officers after soliciting the names of potential candidates from the parties who ranked first and second in the previous election. The Chief Electoral Officer recommends that section 33 of the Canada Elections Act be amended to remove this requirement. This recommendation is repeated from the Chief Electoral Officer’s 2001 report, Modernizing the Electoral Process.

The Committee sees no need to change the current system. The consensus is that this provision, which is consistent with other provisions of the Act whereby names are put forward by the registered parties whose candidates finished first and second in the previous election, works well and serves the needs of candidates and the electoral process.

The Chief Electoral Officer has regularly recommended in his reports to Parliament that the right of Elections Canada’s unionized employees to strike be restricted. This would require an amendment to the Public Service Labour Relations Act. The Chief Electoral Officer maintains that Elections Canada employees perform an “essential service.” He has asked that the right to strike be removed both during and between elections. In justifying the denial of the right between elections, he argues that much of the work of election planning and preparation is carried out between elections.

In the Committee’s 35th Report to Parliament in the 1st Session of the 36th Parliament, concerns were expressed about this recommendation. Alternatives to denying the right to strike were suggested, including binding arbitration. The Committee, at the time, was divided on this proposal.

This is a difficult issue with which members of this Committee, like its predecessor, have had to grapple. The challenge is to balance the legitimate rights of unionized employees with the legitimate needs of election readiness in a democratic system. A strike involving Elections Canada employees during an election would be unacceptable, as Parliament cannot legislate a return to work when it has been dissolved. The Committee is mindful that Elections Canada must be prepared for an election at any time, and this is especially true in a minority Parliament situation.

We understand that there is no single bargaining unit for Elections Canada employees, but that they are members of the bargaining units of public service-wide unions. We further understand that the affected number of employees at Elections Canada is fairly small, and that there are precedents at the provincial level and elsewhere in the federal public service for designating groups of employees as performing an “essential service.” The withdrawal of the right to strike from Elections Canada staff would not affect other collective bargaining rights and protections which they possess under the Public Service Labour Relations Act, nor would they be denied the benefits of any agreements entered into on behalf of their bargaining units.

After careful consideration, the majority of the Committee is prepared to support this recommendation.

The Chief Electoral Officer noted that casual and temporary workers are indispensable to the preparation for, and conduct of, elections. While the Chief Electoral Officer has authority to hire these workers, section 50(2) of the Public Service Employment Act limits their term of employment to 90 working days in a 12-month period. It is argued that this time limit impedes the ability of Elections Canada to administer elections effectively and to meet its legal obligations. The Chief Electoral Officer proposes that the Canada Elections Act be amended to allow him to hire temporary workers for the direct preparation for and the conduct of elections, and that he determine the duration of such employment. A companion recommendation to amend section 542 of the Canada Elections Act is proposed to enable the Chief Electoral Officer to pay these workers under the Federal Elections Fee Tariff. Other temporary workers would continue to be subject to the 90-day time limit in the Public Service Employment Act.

The Public Service Employment Act limits the term of employment of temporary and casual employees, whereas “election officers” — as that term is defined in section 22 of the Canada Elections Act, including returning officers, deputy returning officers, poll clerks, and so forth — are retained separately. We appreciate that the requirements imposed by the Public Service Employment Act can make the work of Elections Canada more difficult, and the Committee accepts this has been exacerbated by a recent decrease in the maximum term from 125 days to 90 days for casual employees. While mindful of the need for flexibility in the hiring of staff by the Chief Electoral Officer, the Committee is not prepared to grant him the authority to hire casual or temporary employees for indeterminate periods of time. The Committee recommends the Chief Electoral Officer be authorized to employ temporary and casual workers for the direct preparation for, and the conduct of, elections for up to 125 days, which was the length of time permitted by the Public Service Employment Act until December 2005.

The Chief Electoral Officer proposes that section 168 of the Canada Elections Act be amended to permit the establishment of advance polling stations for a single polling division. Currently, the Act requires that two or more polling divisions must be served by an advance polling station.

The Committee supports this recommendation. Anything that furthers the goal of facilitating voting is to be encouraged. The implementation of this recommendation will be particularly useful in rural and remote parts of the country. The Committee, however, wishes to emphasize that candidates need to be consulted regarding the location of polls and when to establish them, as they have intimate knowledge of the characteristics and particular needs of their electoral districts, which would be of valuable assistance to Elections Canada.

Section 159 of the Act permits an elector who is in a wheelchair or who has a physical disability to apply for a transfer certificate to enable him or her to vote at another polling station if his or her polling division lacks polling stations with a level access. The application must be made before 10 pm on the Friday before polling day. The Chief Electoral Officer recommends an amendment to remove the limitation period for making the application.

The Committee supports this proposal.

At the same time, facilitating the availability of transfer certificates must not become a substitute for making polling stations accessible. (We address this issue further in section 6.5 under the heading “Polling Stations.”) A concern was expressed about the practical implications of requests for transfer certificates that come late in the day on polling day. Questions such as whether there should be a cut-off time, after which officials may exercise a discretion to refuse the issuance of a certificate, were of concern to the Committee.

The Chief Electoral Officer recommends that the Canada Elections Act be amended to permit the issuance of a transfer certificate to any elector who presents at the wrong polling station owing to a change in the assignment of polling stations or advance polls that occurred after the issuance of the original voting card to the elector.

The majority of the Committee supports this recommendation.

The Chief Electoral Officer recommends amending section 538(5) of the Canada Elections Act to allow the creation of mobile polling stations to serve any institution serving as the ordinary residence of persons who may have difficulties travelling to regular polls due to poor health, age or other circumstances.

The Committee is concerned about the open-ended nature of the various circumstances that could require the establishment of mobile polls. It also has concerns about the seemingly non-exhaustive definition of “institution”.

Mobile polls are currently designed to enable voting by persons who are unable to attend at polling stations, whereas the proposal would open it up much more broadly. While the Committee is obviously supportive of measures which seek to improve the ability of voters to exercise their vote, it is not prepared to endorse the recommendation as presently worded.

Section 81(1) of the Act currently provides a limited right of access to candidates and their representatives to multiple-residence buildings during an election. There is some doubt, however, whether this section permits candidates to enter “gated communities” whereby access to any single residence is controlled by someone other than the residents of those premises. The Report recommends amending the Act to permit such access. The Report further recommends that access to multiple-residence buildings and gated communities be extended to election officials as well as candidates and their representatives.

Concerns were also raised about places like shopping centres and other areas to which the public is customarily invited or given access during business hours, although they are privately owned. While some Members would leave this to be resolved on an individual basis with the property owners concerned, others feel that the legislation should accommodate the legitimate needs of candidates and election officials. The majority of the Committee believes that the common areas of shopping centres and malls should be accessible to candidates for campaigning purposes during business hours.