Mr. Marc Mayrand:
Thank you, Mr. Chair.
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, the bill also includes measures that, in my opinion, undermine its 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: first, improving service to electors; second, providing clear and simple rules for everyone to follow; and third, 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.
On 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.
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 four million do not have one, including 28%, or 1.4 million 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 such 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.
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 their 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 by 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, and not fraud or even irregularities that could compromise an election. There is no evidence tying these errors to 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 to establish address.
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, and various other authoritative sources.
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 even 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 on site do not have driver's 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 only rely on a letter of attestation issued by facility administrators, combined with another document such as an ID bracelet. Some administrators feel that 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 certainly have taken away the ability of many qualified electors to vote.
I will now talk about the second objective of the bill.
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.
The third lens through which Bill C-23 must be examined is its impact on the fairness and integrity of elections. Indeed that is referred to in 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.
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 investigations. The committee may want to hear from the current as well as the former commissioner in this regard.
Nevertheless, the most important issue for me is not where commissioners sit, but whether they have the proper tools to do their 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 their 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 a record to be kept of the actual telephone numbers used in voter calls. Without such information, an investigation 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 robocall affair has been overwhelming. Canadians rightfully expect that such conduct, which threatens the very legitimacy of our democratic institution, be dealt with swiftly and effectively. Without the power to compel testimony, as exists in many provincial regimes, the commissioner's ability to carry out this investigation will remain limited. All in all, when looking at the proposed changes in relation to enforcement, the bill does not address the most pressing expectations 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 section 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.
l am very preoccupied in this regard with the limitation that 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. l am unaware of any democracy in which such limitations are imposed on the electoral agency, and l strongly feel that an amendment in this regard is essential.
In my remarks, l have highlighted what l see as the main areas of concern and suggest some ways of improving the measures contained in the bill. With the committee's permission, Mr. Chair, l would like to submit a table that sets out in a more comprehensive way the improvements that I have recommended being made to the bill. l trust that this will assist the committee in its review of the legislation.
Mr. Scott Reid:
Thank you, Mr. Chair.
Mr. Mayrand, as you know, I have been articulating for about a decade now a concern with an overall lack of capacity or competence at Elections Canada, which predates your tenure, to ensure that there is no voter fraud in this country, or even to monitor the extent to which it exists. I'm hardly the only one to do so. A decade ago Duff Conacher was drawing the attention of the Canadian public to the fact that there were about a million irregularities on the voters list. Other individuals have tried to bring this to light by demonstrating that fraudulent voting can take place.
One example was a man named James DiFiore, in 2006, who wrote an article about how he had voted three times in Trinity—Spadina. There's an interesting quote from the article:
||I've heard Elections Canada has set up a program allowing people with no fixed address to exercise their democratic right. Shelters are providing homeless citizens with special forms they can use at designated polling stations....I ask a shelter volunteer if I can use the form to cast my ballot even if I live in an apartment. He says the system is set up by Elections Canada to provide every citizen a chance to vote. He hands me a form and instructs me to head to the polling station at 34 Oxford....I simply hand the form to the young lady and say, 'I was told I could vote with this'....She hands me my third ballot of the day and points to a booth behind her. I return the ballot and say I've changed my mind. “Whatever you say”, she remarks.
Mr. DiFiore was charged by Elections Canada with having voted fraudulently. He was the only person charged in that election with voting fraudulently. Elections Canada's position is that only one case of voter fraud could be found in the entire country in that election.
In the next election, one case again was found. It was an American exchange student who had voted in order to demonstrate that there was a problem, and had written about it, and again got prosecuted.
As far as I can tell, unless you write an article announcing that you voted fraudulently, Elections Canada doesn't prosecute.
I note that I asked your predecessor how many prosecutions had occurred in the 1993, 1997, 2000, 2004, and 2006 elections collectively, and he said they had to look it up. The answer was eight. Either we only have eight irregularities per five elections, or your office is simply unable to monitor these things when they occur.
Assuming the second one to be true, based on the fact that your office finally responded and did a compliance review to see how you were performing only after the Supreme Court was dealing with the irregularities in Etobicoke Centre, I note that the compliance review, the so-called Neufeld report, states that there were 165,000 cases of irregularities in the 2011 election. That's on page 6 of the final report. It has been suggested by some individuals that these irregularities are minor, technical, or merely administrative, but that is not so. The Supreme Court of Canada said in its ruling, “The term 'irregularities' should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial.”
By definition, any technical, trivial, or administrative non-compliance is outside the 165,000. They made that ruling in October 2012, and Mr. Neufeld in the compliance report used their definition when he came up with that 165,000. I mention this to make the point that there is a serious problem here.
Let me add this point as well. Of that 165,000, 50,736 examples were irregularities in vouching; so about a third were irregularities in vouching. The problem with vouching can be measured a different way. How many cases of vouching actually took place? The answer is that about 140 or so took place. According to the compliance audit, in the 2011 election, 42.4% of vouching was irregular. There's a breakdown of the kinds of irregularities. But again, an irregularity is the kind of thing that can lead to the overturning of an election, something which is of significance. Three of the seven judges on the Supreme Court said that the Etobicoke Centre election should be overturned because of these irregularities.
The other four, who I actually think were correct, said that it shouldn't be because the irregularities, in that particular unusual circumstance of a closed access long-term seniors care residence, could not have caused individuals other than those who were actually living there to have been capable of voting or voting more than once. It was only this fact that caused that election to be saved. This was not the fault of either the Conservative or Liberal candidates who were fighting it out. This was the fault of a set of rules that do not allow Elections Canada to do its job.
That, I submit to you, is what this bill tries to correct via such measures as eliminating vouching.
I'd like your comments on that, please.
Mr. Blake Richards:
If you look at the last several elections, there would be a potential for there to be quite a significant difference in the result of the election had there been a 7% or 10% swing in the votes.
The reason I ask that is I'm troubled by some of the previous responses that you've given. I've been troubled by some of your testimony earlier when we talked about both vouching and the voter information cards.
In the case of vouching, you talk about there being an approximate number, 120,000. There was a sample done of some.
Certainly when you look at it, there is definitely the potential that there could have been ridings where significant numbers came from certain ridings, and it could have made a difference on the result of the election if someone engaged in vouching engaged in voter fraud.
Also, when I look at the voter information cards, your numbers suggest there is about a 10% error rate on those cards. I've actually heard numbers that are even greater than that in terms of the error rate, that it's maybe as high as one in six on those voter information cards.
Then in response to one of Mr. Reid's questions you indicated that once some of the revisions were done, that error rate would only be about 7%. The reason I ask the question about the 7% or the 10% is that I would suggest to you, sir, that they would be quite significant, the number of ridings that would have been at a result of less than a 7% difference.
There is a potential here for someone who seeks to engage in fraud to influence the results of quite a few ridings in this country, and therefore influence the result of the election, based on fraud. I was quite concerned that you didn't see there was a problem with a 7% to 10% or more error rate in those cards. That was quite a concern to me, sir.
I look at the issue of the cards, the duplicates, or the error rates. When your predecessor looked at the 2000 election and realized there was almost a million more eligible voters who were leading into the 2000 election than actually was the case, he said, “A voter information card is just that, a voter information card. This card does not mean that you were entitled to vote more than once.”
With an error rate as high as there is, I would certainly agree that this card should stay as just that, the voter information card.
I really think you should give some thought to that, sir, as to whether the voter information card really is reliable enough to be considered as an accepted form of ID. I really ask that you give some thought to that.
What I'd like to ask you about, however—
Mr. Tom Lukiwski:
I want to make one comment.
Prior to our last discussion, Mr. Mayrand, we were talking about how my contention is that if people are compelled to provide proper ID as opposed to vouching, the potential for fraud would be lessened. I think that's quite obvious. You responded by saying if we did that, then people in my riding would be turned away because they didn't have the proper ID. If you recall, sir, and I'm sure you do, in the act, it requires that the advertising that Elections Canada does is to tell people where, when, and what ID to bring in order to vote. That's why we put it in there, so people would be informed and would bring the proper identification. I agree with you, sir, that lots of people who have been vouched for probably had the proper ID, but they just didn't know. That's all we're doing here.
My question is simply this. This was before your time, but it goes back to the 2006 election where we had an incident in northern Saskatchewan. A Conservative candidate, Jeremy Harrison, who was the incumbent at the time, was leading throughout the evening in all polls. With one poll remaining, all of the newscasts were reporting that Mr. Harrison had won the election because he was up by about 600 or 700 votes. Three and a half hours later, the last poll came in—it was a northern riding on a reserve—with a 105% voter turnout and every single ballot was in favour of the Liberal candidate. Obviously, there was a request to the commissioner to do an investigation. He came back to this committee. I remember asking him why he didn't find what seemed to me to be obvious fraud. His response was that they didn't think so because they were, first, encouraging the first nations people to get out and vote and so that 105% was a good thing since they didn't know how many people lived on the reserve to begin with; and second, it's not unusual to have 100% voting in favour of one candidate since he was well-known and a former chief in a band close by.
My concern, sir, is if the investigations come back with that kind of result, I don't know what we need to do other than what we're purporting to do in this act, give the commissioner of elections clear autonomy and independence—because he currently reports to you—and more authority to impose greater penalties and greater fines, including jail time, so that we can try to crack down on those fraudulent occurrences that we do know about.
Finally, sir, I will simply say this in response to a conversation you had with Mr. Reid, where Mr. Reid pointed out that over the last several elections there have only been eight prosecutions. That's quite true, but how many instances of fraud have occurred that have not resulted in prosecutions? The ones Mr. Reid was referring to were people who deliberately voted twice, who deliberately flouted the election law and told people about it. I just have to say, sir, that I believe there are—I wouldn't say widespread; that's an exaggeration—many more cases of fraud that we do not know about, and many of them come down to the fact that there's vouching, or poor rules, set up or at least administered by Elections Canada.
The clearest, cleanest, and most effective way to ensure that voter fraud does not occur is to make sure that people coming to a polling station have proper identification, not a VIC, but a name and address in proper form. That is the only way to ensure that voter fraud does not occur, sir. That's clearly what we're suggesting in this legislation in allowing voters to have a choice of 39 different types of documents. Only one of those 39 requires an address on it; the other two need to have names.
I've made the point before that if someone wants to bring testimony here saying they were prevented from voting because they couldn't comply with the 39 documents, I would suggest they probably weren't planning to vote in the first place.