:
Mr. Chairman, first I'd like to thank you for the invitation to testify before your committee.
[Translation]
The Canada Elections Act is one of the few federal statutes that is consulted and used by a large number of Canadians. Whenever elections are held, thousands of Canadians must be able to understand this legislation, which sets out the procedures for the registration of voters, the administration of the vote and the conduct of election campaigns.
The scale and scope of such an operation must not be underestimated: there were 66,146 polling stations in the election of May 2, 2011, including 1,669 mobile polling stations, and approximately 350,000 volunteers and temporary election officers participated in the process.
In my opinion, any amendments to the Canada Elections Act must reflect the values upon which Canadian society is founded and must flow from the fundamental principles that characterize a sound electoral democracy. One of those key principles is guaranteeing and promoting citizens’ right to vote.
During the 1980s, Canada took pride in the fact that the average proportion of citizens who participated in federal elections was 75%—a voter turnout rate far in excess of those reported in many western democracies, including the United States. Unfortunately, this is no longer the case: the average voter participation rate for the five federal elections held since the year 2000 is only 61.9%, which is not much higher than the participation rates for U.S. presidential elections. This is a shamefully low voter turnout rate. Any properly thought out reform of our electoral statutes and regulations must, first and foremost, seek to correct this situation.
The provisions of the bill extending the voting period at advance polling stations constitute a measure that meets this fundamental objective. Unfortunately, other measures, such as those concerning the use of voter information cards as proof of identity and the practice of one elector vouching for the identity of another, are ill advised. This last provision undoubtedly contravenes the provisions of the Canadian Charter of Rights and Freedoms. The Charter is unequivocal on this issue. It says: “Every citizen of Canada has the right to vote...” It has been clearly established in case law that a right guaranteed under the Charter can only be restricted insofar as an overriding public interest is demonstrated and, in that case, only insofar as the imposed restrictions are justified within the meaning of section 1 of the Charter and have a minimal adverse effect on a fundamental right enjoyed by Canadian citizens.
Banning, for specious reasons, these practices that have not so far been the subject of widespread complaints from candidates across Canada and which the Chief Electoral Officer of Canada considers essential for allowing thousands of Canadians to exercise their right to vote, does not meet the criterion of proportionality and is not consistent with the sense of ethics that must prevail when such matters relating to the very pillars of our democracy are being considered.
The second key principle is ensuring the fair and equitable nature of the electoral process. To ensure that the electoral process remains fair and equitable, the Canada Elections Act imposes spending limits on all who participate in election campaigns, including private individuals and groups who are independent of the candidates and parties. Bill does not call into question these basic provisions, the just and reasonable nature of which has been confirmed in decisions by the Supreme Court of Canada. However, this goal is undermined when ambiguous provisions, encouraging circumvention of the rules and undermining Elections Canada’s ability to verify and confirm that the practices adopted do not contravene the Act, are incorporated into the legislation. This is the case with section 376(3), which makes it possible to exclude from election expenses the commercial value of services provided to a registered party for the purpose of soliciting contributions from individuals who contributed at least $20 in the five years preceding the date of the vote.
I do not deny that it would be worthwhile for a party to solicit individuals who have previously supported a party or one of its candidates. However, if the cost of this activity is too high to fit under the expenditure ceiling, transparency should be exercised and the ceiling raised by a reasonable amount, rather than undermining Canadians’ confidence in our electoral system by adopting provisions that encourage reprehensible behaviour and imposing additional persnickety rules on our parties.
The third principle is that of bolstering the primacy of political parties in Canada’s political system.
Political parties play a vital role in our parliamentary democracy, in particular through the profound influence they have over access to the House of Commons. The erosion of Canadians’ confidence in political parties, as evinced, among other things, by how difficult it is for parties to recruit new members, does not bode well for the future. Although this phenomenon is only a partial reflection of current social trends that find expression in so many other ways, political parties are not helping their situation by refusing to conform to social standards that are perceived as normal requirements in an advanced society.
Bill would have made a useful contribution in this regard if provisions had been added to ensure that political parties were required to produce documents in support of their spending reports. Parties received more than $30 million in public funds in 2011. Also, political parties should be subject to rules concerning the protection and use of personal information. Such requirements are imposed on businesses, and rightfully so. No legitimate reason exists to exclude political parties and their associations from a similar requirement.
The final principle is that of boosting Canadians’ confidence in the integrity of the electoral process. In its work, the Royal Commission clearly identified the need for a mechanism that would allow the Chief Electoral Officer to issue interpretation notes and guidelines on the application of that act. Such a mechanism is included in the electoral legislation of many of the world’s leading democracies, and the resulting benefits are well documented. Consequently, Bill ’s establishment of such a mechanism is to be commended.
As to the detailed terms and conditions involved, I believe your committee would do well to examine how other democracies, such as the United Kingdom, for example, fared in their implementation of such provisions.
Bill fills another important gap in the existing legislation by adding provisions concerning elector calling services. Overall, the proposed measures are consistent with the recommendations of the groups of experts who studied this issue, particularly those formulated by the IRPP. You have already heard suggestions for improving the new regime, in particular with regard to the information retention period and the advisability of adding to the list information that must be kept, such as the telephone numbers that have been called. In any case, it is crucial that the mechanism concerning calling services be in force when the next election is held.
The proposed regime does not prevent a third party from signing an agreement with an elector calling service provider; it frames this activity. That being said, I think it would definitely be preferable for the cost of such a service to be expressly recognized in the definition of election advertising expenses.
In conclusion, I would like to say that Bill C-23 concerns several other fundamental aspects of our democratic regime, some of which I could not touch upon in the amount of time allotted to me. I would of course be pleased to discuss them during the question period, should you deem it appropriate to bring them up.
:
Thank you very much for this opportunity to testify on this very important bill. I'm especially honoured to be testifying beside Monsieur Lortie.
[Translation]
I really need to practice my French.
[English]
There are many technical terms with regard to this proposed legislation, so I will make my remarks in English. I welcome your questions afterwards.
Democracy Watch's position is that there are 10 measures in Bill , the so-called fair elections act, that are of concern that will actually make federal elections more unfair. I'm going to focus on six priorities that we've identified and summarize those. I'll go through a few measures that the bill fails to include, and those measures are needed to make federal elections more fair.
The six really unfair measures in Bill are as follows.
As Monsieur Lortie highlighted, there's the prohibition of one voter vouching for the identity of one other voter, and the prohibition on the voter registration card ever being certified as a piece of valid ID. Together, these changes will make it more difficult for hundreds of thousands of voters to vote, and so they should be removed from Bill .
Instead, the voter registration card should be added to the list of valid ID. To solve the problem of irregularities with vouching that has been documented, Elections Canada should be empowered and provided with adequate funding to hire and fully train all election workers well before each election, and to also make the voter registration list and ID checking even more accurate. I'm quite sure there is a compromise, as other jurisdictions have found on this issue, that will remove and not increase barriers for hundreds of thousands of people voting.
The second area of concern for Democracy Watch is the failure of the bill overall to democratize the federal political finance system by reducing the annual donation and loan limits to an amount an average voter can afford, and the failure to re-start the annual per-vote funding for parties, which was the most democratic aspect of the political finance system, given that it was based on votes received by each party.
There are still loopholes that are left by the bill on gifts and donations to certain types of candidates. The hike in the donations limit for individuals in Bill are huge hikes in some cases and hugely undemocratic. An average Canadian cannot afford $3,000 a year. That would be the new maximum limit when you combine the donation to parties and the combined donation that's allowed to riding associations of each party.
Certainly, many candidates will not be able to afford to donate $5,000 to their own campaign, or as a party leadership candidate, $25,000 to their own campaign. If you're going to uphold the fundamental democratic principle of one person, one vote, donation limits must be set at a limit that an average person can afford; otherwise, you're allowing wealthy people to use money to have unethical and undemocratic influence over parties and candidates.
In the area of loans, while the loan limits on individuals are good, allowing banks to make unlimited loans to parties and candidates is dangerously undemocratic, as well. Banks are federally regulated and they will be able to pick and choose candidates to support with loans. That's a huge favour for a candidate, even though the candidate has to pay it back.
If the candidate wins, just the fact that they were boosted by a bank loan will be a favour that will put that MP, if they're elected, in a conflict of interest. It's better if all candidates have to reach out to as many voters as possible and build a democratic base of support, not a base of support from wealthy interests and banks.
The third area of concern is the change, as Monsieur Lortie also highlighted, to not count the amount spent on communications for fundraising purposes in the total amount parties are allowed to spend during election campaigns.
This is the first loophole that has been created in spending or donation limits since spending limits were first established in 1974. Forty years have passed and the trend through the whole 40 years has been to close loopholes. This is the first loophole that has been actually created, and like any loophole, it will very likely be abused to hide millions of dollars of unaccountable spending.
The failure to empower Elections Canada in the bill to appoint the auditors for all the parties, riding associations and candidates, and allowing these entities to choose their own auditors is the fourth area of concern, and relates to the spending loophole because Elections Canada will not have the right to all the documentation needed to ensure that loophole has not been exploited to exceed the legal campaign spending limits. This is essentially allowing the parties, candidates, and riding associations to audit themselves, and in combination with this loophole, is essentially a recipe for corruption.
The fifth area of concern is the failure to empower Elections Canada to appoint all election workers, and instead move in the other direction by extending the dangerously unethical power of political parties and candidates who won or came second in the previous election to force returning officers to appoint even more front-line election workers.
The sixth area of concern is the failure to require that the Commissioner of Canada Elections and the Director of Public Prosecutions disclose all of their rulings on all complaints. Instead, the bill requires them to keep all of that information secret. This will make it impossible to hold the commissioner and the director accountable if they make unfair, biased, or improper rulings or enforcement decisions.
Overall, even if these six changes that we're calling for were made, there are other areas that need to be addressed to make federal elections actually fair. We need an honesty in politics law so that parties and candidates can't bait voters with false promises or break promises after elections. We need to change the voting system so that it is more fair and gives parties the number of MPs based on actual voter support, regulate nomination races, have Elections Canada run the debates, and overall give all of the watchdogs more powers, and more clear powers, to ensure compliance and investigate.
I'll leave it at that. I welcome your questions on this very important bill that, unfortunately, includes many measures to make federal elections more unfair, and only a few measures—the registration of robocalls, the limits on loans, and the increasing of fines—that will make elections more fair. There are many more measures that make elections unfair and also fail to address current flaws in our federal elections system.
Thank you very much.
:
I will start with a couple of questions for Mr. Lortie, if I could.
I want to start by going back to page three of your report. I think it's also page three in the French version. You cite section 3 of the Charter of Rights, which I'm going to read here. It says:
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
There has been a debate in the Supreme Court going back to a number of decisions, as far back as the 1990s, as to what this right means and whether it should be interpreted narrowly or broadly. I think the chief justice has incorrectly tried to interpret it narrowly. The majority in the case of Opitz v. Wrzesnewskyj felt that it should be interpreted broadly. They didn't actually address the constitutional question overtly, but they indicated that merely technical or bookkeeping violations of the Elections Act ought not to invalidate a vote, thereby indicating that voting is a right, not a privilege, that the right cannot be restricted for bookkeeping reasons without legitimate overriding concerns. I think all of that fits in neatly with the Oakes test, the normal application of our constitutional rights as being purposive and therefore subject to a larger liberal as opposed to a narrow technical interpretation.
I say all of this because I want to set up the fundamental problem that I think exists with regard to the whole issue of vouching, and it's this. I think we suffer from a database issue here. Elections Canada has, following the law, shifted from doing an enumeration that provided it with a fairly up-to-date database of information—very few people had moved and could not be recorded when the old system was used—to a new system based on what we thought back in the 1990s would be systems that would allow us to keep up with where people are. It hasn't worked out, and we know from Elections Canada's reports that they have an error rate in excess of 20% in 10 ridings across Canada. They won't tell us which ones those are. For the country as a whole, the preliminary voters list has an error rate of 17% with regard to people's addresses. But the preliminary list is what's used for voter information cards. That indicates that they largely don't know where people live.
The question is, how do you deal with this?
They have not unreasonably said that there are going to be fewer fraudulent voters or even mistaken voters who go to a poll where they couldn't legitimately vote than legitimate voters who aren't on the list. Therefore we try to expand things as broadly as we can to allow as many people to come in to vote. We try to find ways of facilitating that, thus the long list of ID, thus the proposed use of the voter information card nationwide as an identity card that can be used. All you need to do is turn up.
It doesn't get away from the fact that the card has a 17% error rate, higher in certain ridings and it doesn't get away from the fact that vouching also has problems, one of which is that it actually can't be used in many places where people are least able to have ID, such as people in long-term residential care.
All of this makes me think that the real solution here is to move away from vouching or the use of the voter information card for identity purposes to something else. One of the ideas that has been discussed on a number of occasions in this committee by witnesses is the idea that we would move to a model that's used in a number of jurisdictions. It's been described here as the Queensland model because I gather they use it in the Australian state of Queensland. If you show up and you don't have proper ID, your ballot is treated as it would be if it was a mail-in ballot. It's placed into a blank envelope to ensure anonymity. It is then placed into a second envelope upon which some sort of declaration of identity is made. Then afterwards there's an attempt to match this up with the voter. This allows people to show up who don't have proper ID. It allows a kind of post-fact enumeration of people who were left off the list. It essentially prevents the possibility of an invalid vote being cast, whether fraudulently or by accident.
Accidents can happen. I tell everybody the story of my ex-wife being told to go vote at a different poll from me, in a different riding, even though we lived at the same house.
What would your view be? Mr. Conacher, you can answer this as well, seeing as I've used up almost all of my time. What would your view be as to whether this system would work to resolve the problems that would exist if vouching and the voter information card were both removed as possible uses of identifying people's names and addresses?
:
I think the issue of vouching and the issue of the information card or whatever are two different issues. In the case of vouching the person vouching needs to be identified as to their own identity and so on. In essence every head of an electoral commission would basically tell you that vouching is important.
The fact of the matter is candidates and parties also have people in the polling stations. To a large extent that is a safeguard that you cannot just eliminate from any discussion. There is a series of safeguards, if you want, around that.
To a large extent I don't think we have seen people in Canada coming out as we had with the robocalls and so on and saying that there is a scandal about using vouching or using the card. That's just not happening. In essence if you have a charter that tells you have the right to vote, bureaucratic measures don't trump that.
To say you have a list of 13 or whatever pieces of paper does not address that issue. If you have safeguards around, that's fine, but on the other hand you also have to ensure that the process works.
One of the issues with a lot of the paperwork being required is that it blocks the process. It is not necessarily true that all the paperwork we ask for is important. As a matter of fact in this bill you say we don't want the date of birth anymore; we want the year of birth. Does it really matter if it's November or whatever?
It's not true that everything we're requiring that is imposing issues is truly required. On the other hand, at least on the vouching, I don't think you can say you'll take it out and tough luck if you cannot vote. That ain't going to work; I'm sorry.
:
Thank you to both witnesses. I have several questions, and I'm just going to state them at one time, and then you can decide which ones you might like to touch on.
[Translation]
Mr. Lortie, you said that section 376(3) was problematic because it encourages the circumvention of the rules and undermines the ability of Elections Canada to verify and confirm that the practices adopted do not contravene the act. You also said that that section makes it possible to exclude from election expenses the commercial value of services provided to a registered party for the purpose of soliciting contributions from individuals who contributed at least $20 in the five years preceding the date of the vote.
In the bill, why was the wording “at least $20” chosen? If a donation is under $20, it can be anonymous. The wording is not “over $20”, but rather “$20 or more”.
[English]
The second question is, Mr. Lortie, in your original massive and incredibly helpful report from the late 1980s, at one point it says:
The Canada Elections Act must not impede the appropriate use of new technologies in the electoral process as they become available; this will help to ensure that the voting process remains user friendly and cost effective. Specific developments in communications technologies may be difficult to anticipate, however. The Act should not freeze voting and other election procedures at the level allowed by current technologies; but at the same time the integrity of the electoral system must be maintained.
I'm not sure if you're aware, but in the bill there is a special singling out of electronic voting so that this is the sole alternative voting process that Elections Canada now cannot do without having the full agreement of the House of Commons and the Senate. For any other alternative procedure, it goes to the appropriate committee, this one in the House and a committee in the Senate. That's the current law. They're creating a huge obstacle for this one form of voting without allowing Elections Canada to engage in its own tests. I'm wondering if you have any comments on if it's appropriate to add that extra obstacle.
The last two questions will be short.
It's true that there's an extension of the politicization of appointing of election day workers, but the most serious addition is adding central poll supervisors as the first-place party or candidate from the last election's appointment. The current system ostensibly has this so-called balance, because deputy returning officers and poll clerks are appointed by the first-place and second-place parties. Is there any conceivable reason why at this point in time the first-place party should now also be given this additional appointment, apart from the fact, and I totally agree, that political parties should not be involved in the first place?
Last, Mr. Conacher, you mentioned the $5,000 donations to one's own campaign. It in fact could end up being $8,000. You can give $5,000; you can give $1,500 to your EDA; and you can give $1,500 to the national party that one way or another might make its way back to you, although you can't make that deal in the first place.
I'm just wondering if you could each comment on any one of those points that you like.
:
Thank you very much, Mr. Chair.
I would like to continue to explore what Mr. Opitz just addressed, because I think it is important to really understand this point.
I would like to quote a recommendation made by the Chief Electoral Officer following the 40th general election:
Were returning officers not required to solicit the names of potential deputy returning officers, poll clerks and registration officers from candidates, they could begin recruitment earlier and would have more time to adequately train new staff.
This corresponds completely to the point Mr. Opitz raised. The main recommendation of the Chief Electoral Officer and several other people who are very familiar with the election process is to be able to hire people earlier in order to provide them with better training, which would considerable reduce the administrative errors mentioned in the Neufeld report and in general.
I think this is a much more appropriate solution in order to improve the system, rather than eliminating the vouching system entirely and using the voter information cards.
Do you agree with the CEO's recommendation?
:
Unfortunately, because I have only four minutes, I'm restricted in the number of questions I can ask.
I do want to engage you, Mr. Lortie, on something you said earlier, that is, on whether or not it would be appropriate to have the Commissioner of Canada Elections removed from Elections Canada and put over to the DPP's office. We obviously agree with that. To us it's a matter of independence.
The point, which I will raise with subsequent witnesses as well, is that when the Commissioner of Canada Elections was here, he maintained that he currently does have independence but under questioning from me, he admitted that the Chief Electoral Officer hires him, has the ability to fire him, and quite frankly can direct the Commissioner of Canada Elections into conducting investigations.
I don't know about you, Mr. Lortie, but in my world, if somebody can hire me, fire me, and tell me what to do, that person is my boss and therefore I'm not independent. We believe it is appropriate to remove him, give him full independence, so that he or she, depending on who becomes commissioner years hence, would have the ability to determine his or her own investigations.
They can certainly receive requests and appeals from anyone, including the Chief Electoral Officer, but the Commissioner of Canada Elections would determine himself whether it would be appropriate to go forward with an investigation. I consider that to be true independence.
I appreciate your comments and I agree with you, Mr. Lortie, when you say there still has to be close communication between administrations, in other words, the Chief Electoral Officer and Elections Canada and the commissioner. If they want to suggest an investigation take place, the Commissioner of Canada Elections has to know the background. They have to know the relevant information. Clearly that has to take place and I believe it would. But we're saying that to maintain clear independence and the perception of independence and no interference, we would remove the Commissioner of Canada Elections from his current status as being beholden, frankly, to Elections Canada and put him into a position where he's truly independent.
I'd just like you, in the few moments we have left, to add some comments on that.
[Translation]
Hello everyone.
As the chair of the committee mentioned, my name is Miriam Fahmy and I am the Director of Research at the Institut du Nouveau Monde, a non-partisan, non-profit organization that is based in Montreal. Its mission is to increase and support citizen participation in democratic life.
I would like to thank the committee for inviting us to testify about Bill , the Fair Elections Act.
I will now provide you with some information about the INM.
The INM organizes public debates in which ordinary citizens are invited to participate. These activities help to strengthen citizenship skills and citizens' knowledge of social issues. The INM also organizes citizenship schools for college-aged youth and young adults in their 20s.
Since 2012, the INM has been working with the chief electoral officer of Quebec in order to develop and implement promotional campaigns to encourage young people and the general public to vote.
Finally, the INM stays abreast of research on democratic life, more specifically, voter turnout. The INM is concerned about a number of aspects of Bill . However, given our practices and expertise in civic education, my speech today will focus on a single aspect of the bill and that is the amendment proposed to section 18 of the Canada Elections Act, which would take away Elections Canada's public education mandate.
As you all no doubt already know, there has been a very strong decline in voter turnout in Canada. However, an even more serious trend has emerged since the 1980s, and that is a consistent, significant drop in initial turnout or turnout among members of a new cohort of electors who are eligible to vote for the first time. This rate went from 70% in the 1960s to 50% in the 1980s and 40% in the 1990s. Since the beginning of the 2000s, this rate has stayed below 40%.
All of the studies show that voters who do not vote the first time they have the right to do so are unlikely to do so later on. Given that, today, so few new voters tend vote when they come of age, the general rate of voter turnout is expected to continue to drop. According to experts, there is no doubt that the drop in voter turnout in federal elections is mainly due to the drop in initial turnout.
That is why the INM believes that an overall strategy, the objective of which is to reverse this trend that is threatening the legitimacy of the electoral process, should focus mainly on young people aged 16 to 24, or young people who are on the verge of acquiring the right to vote or of voting for the first time.
Like the INM, Elections Canada conducted research in order to understand why young people do not vote. The results of this research show that the main reason is that young people are not interested in politics. When young people are asked what could be done to pique their interest, they said that civic education would be the best way of doing so.
Elections Canada took note of this and began working to reverse this trend. In co-operation with civil society organizations, Elections Canada is piloting public education programs, innovative election day voting simulations in schools and campaigns to promote voter participation.
All of these initiatives seek to provide the non-partisan, civic education needed to encourage young people to vote. However, rather than strengthening Elections Canada's role as a non-partisan educator, the amendment to section 18 proposed in Bill takes that mandate away from Elections Canada.
[English]
In light of this information, the Institut du Nouveau Monde recommends that Bill be amended to not only maintain but reinforce the role and responsibility of Elections Canada as a provider of civic education programs and public awareness campaigns.
It is our belief that more studies should be conducted to further understand what stimulates youth voter turnout, that current education programs should be extended as much as possible, and that new initiatives should be developed targeting the issues that research results point to.
Any and all efforts that can encourage youth to go out and vote should be encouraged and strengthened, not abolished.
I am happy to answer any questions you may have.
Thank you.
:
Thank you very much, Mr. Chairman, and members of the committee.
I am here today as a board member of the Council of Canadians and also as legal counsel to eight Canadians who applied to the Federal Court in 2012 seeking orders annulling the results of the May 2011 federal election in six ridings across the country because they were the intended victims of voter fraud.
I've prepared a written statement, which I believe is translated, and which I think all of you have, so I won't take you through that. But I do want to point out some of the more significant things we want to say to this committee and to the federal government.
I want to speak to you about an aspect of the fair elections act that hasn't attracted a lot of attention, but which in our view is critical to safeguarding the integrity of the electoral process and the democratic franchise of Canadians. I am referring to section 524 of the Canada Elections Act, not the bill, which empowers any elector to defend their constitutionally protected right to vote.
I've reproduced the provisions of section 524 in our submissions, but they entitle an elector or a candidate—and only an elector or a candidate, not the Chief Electoral Officer or commissioner or anyone else—to actually bring an application to the Federal Court seeking the annulment of an election in certain circumstances. These include the circumstances set out under paragraph 524(1)(b) of the act where there are alleged to have been irregularities, fraud, corrupt or illegal practices that affected the result of the election.
While a great deal of attention in this committee has focused on the enforcement role of the Commissioner of Canada Elections to prosecute perpetrators of voter fraud, only a candidate or an elector, as I have noted, can seek a court order annulling the result of an election that was fraudulently won.
It is this right of an individual elector to defend their democratic franchise that is arguably, in our view, the most significant deterrent to voter fraud. It's one thing to chase a fraudster, somebody like Pierre Poutine, and catch him and subject him to significant sanctions; it's another to take away the ill-gotten gain, which in certain cases is going to be a seat in Parliament that was not fairly won.
As I expect members of the committee will know, on May 23, 2013, Mr. Justice Mosley of the Federal Court rendered his decision in the applications my clients had brought and made the following findings. I set out some of the key findings of his decision in my submissions, but I just want to draw your attention to two or three of these.
He found, “there was a deliberate attempt at voter suppression during the 2011 election.” He found the calls that were made misdirecting people to the wrong polling stations were “targeted towards voters who had previously expressed a preference for an opposition party, or anyone other than the government party...”.
He also found there was an orchestrated effort to suppress votes during the 2011 election campaign by a person or persons with access to the CIMS database. You all know what the CIMS database is. He said he was satisfied that the CIMS database maintained and controlled by the Conservative Party of Canada “was accessed for that purpose by a person or persons currently unknown to this court” and that was the source of information used in this effort to defraud Canadian electors.
Last, he found that during the course of the litigation the Conservative MP respondents engaged in trench warfare and every other tactic to prevent the matter from coming to a hearing before the court.
To the question that remains, having regard to those conclusions, I think as a well-known national columnist pointed out, we now have a smoking gun, but we just don't know who pulled the trigger. But the people who control the CIMS database will know who downloaded lists of non-Conservative Party supporters in the days leading up to the election, and the findings of the court indicate that indeed the database was used for that purpose.
What does the bill before you have to say about that? Nothing. It imposes no greater measure of accountability on those maintaining these types of databases—not just the Conservative Party, but all political parties—for their misuse.
In fact the bill as before you will actually make it more difficult for an individual elector to bring the kind of applications that my clients brought, because they are unlikely to ever discover that voter fraud took place during a particular election, as both the commissioner and the Chief Electoral Officer are prevented from making public complaints about voter fraud that come to their attention.
I've also set out in our submissions the amendments to the bill that we believe would actually address the problem of voter fraud and make it less likely to occur in a future federal election.
Thank you very much for giving me the time today.
:
I'm Simon Rowland, founder of Direct Leap Technologies, which is a telecom engineering and voter contact firm. We have developed a lot of telecom equipment over the years.
The first point l want to make is that the scope of the crime in terms of the national election fraud investigation is breathtaking, and this is an important context to keep in mind when looking at reforms to the Canada Elections Act.
I have a few points. It needs to be an offence to hire an unregistered voter contact firm so that the onus is also on clients to verify the registration. SMS, Facebook messages, and a huge list of other communications technologies aren't adequately regulated as voter communications. This list of technologies will evolve over time as communication with electors moves from in-person canvassing over time to jump from technology to technology, but SMS is essentially totally unregulated.
Elections Canada needs to have a much easier way to request telephone records. Imagine if Revenue Canada needed to put forward evidence in a 50-page brief in order to get access to the basic books and receipts to begin an audit. The current process to obtain digital phone records of an essentially public act, an essentially public communication, is the same process that detectives are required to follow in order to forcibly enter someone's home. Given that modem investigations are going to often involve the telephone, investigators need to have either the same powers as the CRTC to simply request records from carriers, or similarly, to have the right to request records of intelligence databases that match voters' complaints.
These CRTC-type tools to request calling records also make it easier to audit evidence provided by voter contact firms, simply by requesting the matching records from the carriers they send calls to. If a call centre that's subject to an investigation produces a table of calls as evidence, for example, as RMG did during the Federal Court challenge, it would be nice to be able to easily verify that there aren't any calls missing from the list. The ability to more easily cross-reference these records would add to the evidence value of these computer files.
The fact of a voter complaint must be enough to retrieve the relevant telephone records by canvassing major carriers to determine if the listed calls had transited their network. This allows the calls to be traced back to their call centre of origin using billing records. There has to be a change in the law to make it easier for Elections Canada to request telephone records. Like the CRTC, it is now in the 21st century, essentially a telecommunications regulator.
Investigations will end up requiring cooperation of international enforcement bodies, which must be facilitated in advance.
Election fraud at a sufficiently serious industrial scale may need to be declared to be at the level of priority as national security to permit international cooperation in tracing fraudulent calls to their originators, as this status is normally what is required to get other countries to process our subpoenas.
Imagine a foreign call centre distributing misinformation to influence the outcome of a foreign country's election, or simply debasing the integrity of the process. Offences that are now quite imaginable have the potential to be very serious, and require an appropriate framework for investigators.
Another point is that every piece of telecom equipment is designed to collect calling records in real time, as this is needed to do billing. These records from voter contact firms should be streamed to a secure records archiving facility at Elections Canada as a part of the voter contact registry. Contacting voters with a political message is fundamentally a public act, and making these records automatically available to Elections Canada for investigation or audit and archiving is simple transparency that would allow investigators to find a call that matches a voter's complaint with a simple search.
There is a great deal that can be done to facilitate the investigation into telephone voter fraud. For example, voter contact firms should essentially be auditable. What they do is a public act. Grant Elections Canada the power to audit the technical infrastructure and financial records of voter contact firms. They can start by simply auditing every firm that does voter contact and that did it in the last election.
I find it curious, after Parliament unanimously voted to provide new powers to Elections Canada following the revelations of the industrial-scale voter fraud that took place in the last election, that this bill instead would take relevant powers away.
Thanks, Mr. Chair.
:
Sorry. I submit that largely political parties should be responsible for creating that motivation. It's our job to make sure as candidates that we encourage and motivate young people to vote.
But there's another problem for young people. This comes from Elections Canada's own data. After the last election, they looked at the reasons young people didn't vote, and some of the biggest things they found were logistical problems and lack of information. For example, there was not knowing where to vote; 25% reported that as a problem. As well, 26% reported not knowing when to vote, and 19% cited not knowing how to vote as playing a role in their decision.
Obviously, I believe that the requirements of Elections Canada to better focus on ensuring that young people do have that information about where, when, and how to vote...and one of the biggest things I think we've seen through a lot of the testimony we've had is not knowing the IDs that might be required, or what might be on the list of 39....
Do you think having Elections Canada focus a little bit better on that role of letting people know that information would be helpful in encouraging more young people to get out and vote?
:
Thank you. I think there are a number of questions in what you just said.
First, I am in favour of having every effort made to ensure that young people know where and how to vote. If there are new, more effective strategies to be implemented, then I believe they should be. That being said, this is not my area of expertise so I am therefore not in a position to tell you which strategies should be used over others.
However, what you are saying is that you think that it is up to the parties to motivate young people to vote. The second reason why young people don't vote, which has nothing to do with logistics and more to do with motivation, must be dealt with by the parties, as you said. I share your opinion. It is the parties' responsibility to make voters and future voters interested in the ideas they want to promote in democracy. That is part of the democratic process.
That being said, I believe that Elections Canada also has a role to play. It has a different role in that it is a non-partisan agent that is at the service of Parliament and Canadians. This distinct role allows it to speak to young people in a different way and generate interest as well.
I am tempted to say that they are not mutually exclusive. Every possible effort must be made.
:
Sorry. The acoustics aren't great in the room, I know.
It centres around students who are away from home at post-secondary institutions. Obviously in that situation a student has the opportunity to determine where their residence is for the purposes of voting. Now, my understanding of the act is they're supposed to vote where they consider their residence to be. That's the choice they obviously make, as to where they determine their residence to be.
They have the option of choosing to vote at home, where their parents live, if they intend to return there and consider that their residence. If they choose that option, they obviously can vote by special ballot without having to return home. If they choose to vote at the university that's away from home, of course there are other options available to them such as, if they are living in a residence, having an attestation of residence from the student residence.
I'm curious if you can tell me how many students, if they choose to make the university their home residence, live in residence. Do you know the numbers or percentages of students who live in residence away from home?
:
Thank you to our witnesses.
I did want to acknowledge the role the Council of Canadians did play in revealing publicly through the court process the little that we do know. I want to thank you for your efforts. It did produce a ruling by one of the leading judges in this country, Judge Mosley, who did find, as you indicated, that there was “an orchestrated effort to suppress votes during the 2011 election campaign by a person or persons with access to the CIMS database.” We know that database is the Conservative Party's database, and he found that the most likely source of the information used for the robocall fraud across the country was that database.
It's all the more worthy of our thanks that you persevered in getting that ruling, despite the judge also noting that you had to face “trench warfare”, attempts to “block these proceedings by any means”, and attempts to “derail” these proceedings by the lawyers of the Conservative Party representing the MPs, who probably had no say at all in how their case was being conducted, I must add.
You also indicated here, and I think this is really important, how crucial the database is, and I'll be getting to Mr. Rowland on this. You indicated that how quickly those who have access to the database in the Conservative Party could determine who downloaded the database when and, frankly, from where. And we do know in recent days that a certain individual at the head of the Conservative Party, a Mr. Soudas, was traced back to a download that resulted in the releasing him from his duties. Yet somehow we cannot find who downloaded this data in the case of 2011.
Mr. Rowland, you've given some extremely powerful suggestions that indicate, if I'm right, that the robocall system put in the act is minimalist at best, and not likely to actually catch the kind of robo-fraud that occurred in 2011. Would that be your opinion?
:
Yes. Thank you, Mr. Chair.
I do want to pick up on that point. You said there were 174 ridings, and when you consider that there are 308 ridings, it's unbelievable in terms of the abuse that had taken place in the last federal election, and the degree to which Elections Canada had been contacted by, from what I understand, in one form or another, more than 30,000 Canadians.
Of course, the driving force behind this was the robocalls. The robocalls, or what have been known as the robocalls, are what have really angered a good number of Canadians from coast to coast to coast. In fact, I would suggest to you that it's one of the primary reasons we have this legislation before us.
Mr. Shrybman, in your presentation, in trying to get justice in this whole issue, because it all goes back, from my perspective, to the data bank.... The literally tens of thousands of mischievous phone calls, everything from calling late in the evening to get voters upset and to maybe not vote for a particular political party, to calling on inappropriate days during the week, to calling on election day telling the person to vote in another location...the purpose of that was all about voter suppression.
From the court documents—and you made it a part of your presentation—it seems that the Conservative Party data bank is the one that's been tied to the data bank that has most likely been used in terms of allowing those calls to be made. We don't know who made the calls, but are you fairly confident...? You've tabled the document with the quotes from Justice Mosley. Can you provide a further comment in terms of why it's so conclusive that it was the Conservative Party data bank that appears to be the data bank that was used to make these tens of thousands of calls?
:
Well, I think the conclusions with respect to the data bank and the use of CIMS are Mr. Justice Mosley's. What he had to say, in addition to finding CIMS at the source of all of this, was that the campaign that he concluded took place during 2011 was centrally organized by someone who had access to the database and the authority to use the information from the database to carry something out on a much broader scale than Mr. Poutine, whoever he might be, carried out in Guelph.
I agree with you that it's all about the database, and there are some very simple ways for requiring those who keep these databases to be accountable for their use. One of them is to simply give the Commissioner of Canada Elections the power to compel production of database records.
The other, which I think is just as important, is to allow individual electors, in a claim under section 524, to actually name a political party as a defendant and to proceed by way of action, not just application, which means that they would have the right of discovery. In other words, in our case, we could have named the Conservative Party of Canada as a defendant, in addition to the individual MPs, compelled production of their database records, and had the opportunity to cross-examine those who have carriage of them. That would have told us who pulled the trigger on the smoking gun.
:
Ms. Fahmy, I want to pick up where we left off. I ran out of time on that last part that I wanted to discuss with you.
I appreciate that you indicated specifically that university students weren't necessarily your expertise, but obviously, in encouraging people to be a part of participating in democracy and elections, I know you did have a focus on young people, so you obviously have picked up some knowledge along the way. I would like to focus on that a little bit.
Where I was going with it, basically, was when one's away at university—the reason I asked you about the numbers who live in residences—there are a couple of different options available. It all centres around where they determine their residence to be. That's where they're supposed to vote: where they determine their residence to be. Obviously, in the case where someone is away at university, if they do intend to return home to their parents' house in the summer, they may consider that as their residence, so the riding they are choosing to vote in would actually be different from where they are currently. Then there are other reasons that people would be in that situation on election day, for work or other reasons, and that could be the case.
There are provisions, of course, for people to be able to vote in their home riding, where they consider their residence to be and where they intend to return to. One of them is a special mail-in ballot that someone can ask for. I know people who have done that. It's a fairly simple process, something they can do. I also believe—and I do stand to be corrected, but I'm 99% sure I'm correct on this—that someone can go to a returning office elsewhere in the country and ask to vote by special ballot in their home riding by proving they are a resident of that riding. So there are options available.
We've had other witnesses who have appeared before us to talk specifically about the student situation, and my understanding is that it is generally not about proving their identity. That's usually not an issue. What we have had indicated to us is that it is about proving their address. Now, obviously, the reason that has been given to us is that they might have all their correspondence going to their parents' home, which would indicate to me that it would likely be what they would consider their residence to be, and likely they should be voting by one of those special ballot procedures, if that's the case.
However, if they do believe their residence is in fact where they are at school, there are options. That is one of the reasons that I asked you specifically about the idea of how many live in residence, because that's one option. They can have an attestation done as to their residence by the school. But there are also other forms of ID. If someone is considering that to be their permanent residence, obviously, this could be done. They could provide a bank or credit card statement, a utility bill, correspondence issued by the school—there is actually that information specific to a student that's given to them by the school—statements of government benefits, notices related to income tax, insurance policies, or even a residential lease or mortgage statement. Even a student who doesn't live in residence could simply provide their lease. I know there are situations where students have more than one living in a household, but they could certainly have their name added to the lease.
I guess my question is, would it be helpful for Elections Canada to be able to better communicate to people that there are these options in terms of special balloting or other forms of ID or letters they could provide? Would that be helpful if Elections Canada was to provide that information to you so they would be better able to know their options in terms of voting?
My question is specifically for Ms. Fahmy.
Over time, Elections Canada has adopted various measures and you have proposed ideas that I find very interesting to promote first-time voting.
I really liked your presentation because it is true that studies show that someone who is voting for the first time, as soon as he or she is over 18, will have many opportunities to come back and vote at all the subsequent elections.
I would like your opinion on two measures that you mentioned during your presentation. Under current legislation, Elections Canada cannot come in contact with someone who is not already a Canadian voter. That means that Elections Canada cannot communicate with someone who is under 18. Would allowing Elections Canada to do so be a good idea? In the case of fixed election dates, as is currently the case, Elections Canada knows precisely who will be 18 on election day and could ensure that those people are registered on the voter list and able to vote.
The other measure would be to encourage as much as possible the hiring of young people between 16 and 18 to work on election day. That way, by being on site and working for Elections Canada, they would have direct access to the system and that might make them more interested.
Could you share your opinion on these two specific measures?
:
Thank you all for being here.
I want to concentrate my observations and questions again on students voting, young people voting. We have heard from many of our witnesses the fact that some students just don't have the required identification and that's a justification in the minds of many of our witnesses to continue vouching and use of voter information cards as proper ID when confirming addresses.
I would point out to all of you, and in particular to members of this committee, that I've been a member of PROC for 10 years now, and I recall back in 2006 we had a very lengthy discussion about the use of vouching and voter information cards, and almost all—not all, but almost all—members of the committee, and particularly the Liberals, at that time were adamant in their belief that voter information cards should not be used. The national director of the Liberal Party, Mr. MacKinnon, came here and said that there should be proper ID, that vouching should not be allowed, that voter information cards should not be allowed. So it's interesting to see particularly how the Liberals have changed their tune when it's politically convenient.
My point is simply this. As you know and as you've testified, there are 39 current pieces of identification that could be used to verify who you are and where you live. That list of 39 has been developed by Elections Canada, not by the government. We're not the ones saying that these are the 39 pieces that we've come up with so you should be able to satisfy the requirements on identification.
Since it is something that Elections Canada has developed, has your organization considered sending a letter to Elections Canada suggesting additional forms of identification that might be able to capture those people who, perhaps on the student side, are falling through the cracks right now? As in 2006, our contention is that the sanctity of vote is extremely important, just as important as it is the right of every Canadian to exercise his or her franchise.
I'm looking to see if we can find a way to get both of those competing elements, it seems at times, together. Would you undertake to do some research and perhaps make recommendations to Elections Canada to expand the list of 39 eligible pieces of identification?