Statements and Speeches

Remarks of the Chief Electoral Officer

In Response to Concerns Arising from Allegations of Wrongdoing
During the 41st General Election

before the
Standing Committee on Procedure and House Affairs

March 29, 2012

Check against delivery

Good morning, Mr. Chair, and thank you for inviting me today.

As you are aware, there have been a significant number of media reports and much debate in recent weeks concerning various allegations of wrongdoing during the 41st general election. Most of these relate to complaints made by electors regarding different forms of improper or fraudulent telephone calls. In that context, concerns have also been raised regarding the administration of the vote in certain electoral districts. This includes allegations of unusual numbers of polling day registrations, people registering improperly and voting by non-citizens.

These are very serious matters that strike at the integrity of our democratic process. If they are not addressed and responded to, they risk undermining an essential ingredient of a healthy democracy – namely, the trust that electors have in the electoral process.

As Chief Electoral Officer, it is my role to ensure that every effort is made to address these issues effectively, fairly and impartially, as well as to preserve the trust and, indeed, the pride that Canadians have in their electoral system. This is why I feel that it is important to be here today to explain key aspects of our administrative and investigative processes, not only for the benefit of parliamentarians but all Canadians.

Before I do so, however, I want to address more specifically the issue that has been referred to as "robocalls."

"Robocalls"

The label "robocall" has been used in the media to refer to various types of alleged improper conduct involving telephone contact with electors during the 41st general election.

• This includes complaints of both automated telephone calls and live calls.
• In many cases, the complaints allege misrepresentation as to the source of the call: either calls claiming to be from Elections Canada or falsely appearing to be on behalf of a particular candidate or party.
• In some cases, the complaints refer to electors being falsely informed of a last-minute change of polling place; whereas in other cases, the complaints relate to "harassing" calls, either because of the time or recurrence of the calls, or because of their tone.

I will come back later to the issue of changed voting locations and how we inform electors of such a change. Suffice it to say that automated calls informing electors of a change in their poll location during the 41st general election did not come from Elections Canada.

Any action taken to deliberately misdirect electors and interfere with their right to vote under the Constitution and the election act is a serious offence. It not only denies the fundamental rights of affected electors but also diminishes our democratic institutions and the rights of all Canadians.

During or immediately after the election, we received approximately 70 complaints alleging various forms of improper telephone communications, including messages impersonating Elections Canada employees and sending electors to the wrong poll location. These complaints were treated seriously and diligently by the Commissioner of Canada Elections, who immediately undertook to investigate them.

Significant details of the investigation were included in various court documents that were revealed by the media on February 22, 2012, and since that date. These show that on May 5, 2011, only a few days after the election, a senior investigator in Ottawa communicated with some of the complainants and met with them in Guelph on May 19.

The recent media reports on details of the subsequent investigation resulted not only in sustained media coverage, but also in a large number of people communicating with Elections Canada. Since then, close to 40,000 people have contacted my Office to express their concern. Of these contacts, over 800 were complaints alleging specific occurrences of improper or fraudulent calls across the country. We have added sufficient resources to deal with the inflow of communications and to contact electors who made specific factual allegations. As I indicated in my statement on March 15, I thank Canadians for their collaboration.

The Office of the Commissioner is pursuing its investigation, and I am confident in their ability to do so in a manner that meets the highest standards. Until the investigation is completed and the facts are established, I reiterate the importance of not drawing any premature conclusions.

I intend to submit a report to Parliament within a year about administrative as well as legislative issues around privacy and communications with electors in the context of evolving technologies. The report will examine not only issues around telephone communications but also, for example, the emerging use of social media and the new challenges that they pose.

In the meantime, I believe it is important that I share with parliamentarians, as well as with Canadians, certain information regarding our administrative and investigative processes. This will help to clarify the role and responsibilities of my Office, as well as those of all participants, in maintaining trust in the electoral process.

Roles and Responsibilities

Administering the Election

The administration of an electoral event is a massive and complex undertaking. For the purposes of this appearance, it can be simply broken down into three key activities for which my Office is exclusively responsible and accountable. These are:

1. Identifying and locating electors
2. Setting up polls, and
3. Administering the vote

The identification of electors is done by maintaining the National Register of Electors and updating it through revisions during the election. It includes ensuring, to the extent possible, that electors are correctly listed at their place of residence.

The second aspect of the process is setting up the polls and informing electors of their polling place. This is done locally by returning officers and their staff during the election, in accordance with guidelines provided by my Office. Poll locations are confirmed early in the election calendar, so that electors can be informed of where to vote on the voter information card that is mailed to each registered elector 24 days before polling day.

Subsequent changes in poll locations are relatively rare but inevitably do occur for a variety of reasons. In the last general election, a total of 473 polls (or less than 1%) were moved, affecting some 300,000 electors (or 1.3%). This can be in response to feedback from electors or candidates, or because of an unforeseen event, such as a flood or power outage, resulting in the loss of a polling place.

If a change of voting location occurs in the last week of the campaign, it is too late to issue a revised voter information card. In the last election, there were late changes to 61 polls in 24 ridings, affecting 19,000 electors out of 24 million. We do not have the electors' telephone numbers and do not call them to notify them of late polling place changes. In those cases, we ensure that a poll worker is present at the closed poll to redirect voters to the new polling place.

The responsibility of communicating with electors with respect to their polling place is exclusively that of Elections Canada. We have the most authoritative and up-to-date information on the electors and their voting locations, and we are accountable for it. This is why we specifically ask political parties and candidates not to communicate with electors in this regard, but refer them to Elections Canada in order to avoid errors and confusion among electors.

Finally, the third key component of the electoral process for which Elections Canada is responsible is the administration of the vote. In this regard, recent media reports have suggested possible irregularities in certain electoral districts.

The administration of the vote involves the application of the voter identification rules, the handing out of the ballots, and the counting of the votes. While Elections Canada is responsible for conducting the vote, candidates also play an important role. Among other things, they may appoint representatives – or scrutineers – at each poll to observe the vote, challenge the qualification of electors where appropriate, and report any irregularities.

As in the case with poll locations, it is important that each participant understand his or her own role. Scrutineers who have reasonable doubts regarding the citizenship of a person may ask that the person take the prescribed oath. They cannot, however, otherwise attempt to prevent electors from voting or interfere with the application of voter identification rules.

It should be noted that, if there are reasons or information supporting a concern that persons who voted were not qualified electors, the information must be provided to my Office or to the Commissioner of Canada Elections. This must be done in a timely fashion and with specific factual elements.

I find it troubling to hear sometimes sweeping and vague allegations of irregularities being made public many months after the election and not supported by specific facts. In some cases, the complaints are made to the media without any information being forwarded to Elections Canada. Such allegations cannot be verified and merely undermine the trust of Canadians.

For example, there has been recent media coverage on allegations of large numbers of unqualified electors voting in Scarborough–Rouge River and improper voter registrations in Eglinton–Lawrence during the May 2011 election. No specific actionable information has been provided to us, making any kind of review challenging to say the least.

Regardless, in Eglinton–Lawrence, we were able to determine that the forms shown in the media were in fact applications to register and vote by local special ballot, and not polling day registration forms. To be diligent, we examined all 1,275 of these forms, and with the exception of three voters, who were listed at a commercial address, could not find any evidence of irregularities as claimed. The three cases we identified are being looked into.

Conducting Investigations

I will move now to the process for conducting investigations. The Commissioner of Canada Elections has the responsibility under the Canada Elections Act for the investigation and enforcement of election offences. He is appointed by me and is accountable to me, but has independent authority under the law.

The Commissioner is supported by a core team of nine investigators, and is assisted by lawyers and others within Elections Canada. Under the Act, all of the expenses required to pursue his investigations and carry out his duties may be drawn on the Consolidated Revenue Fund. This can include contracting for additional resources, as required.

The Commissioner's Office receives complaints from the public as well as internal referrals from Elections Canada. The Commissioner's Office carefully and impartially reviews all complaints it receives concerning an offence under the Act. This review considers whether the complaint or referral falls within the Commissioner's jurisdiction, whether the information provided is sufficient, and whether there is a basis for an investigation. If the complaint is anonymous, or if the allegations are too vague, there may be no basis to pursue an investigation. If a file is closed, the complainant is notified of the reasons in writing.

Like all law enforcement bodies, the Office of the Commissioner treats complaints and referrals in the strictest confidence. It discloses neither the sources of the information nor the information collected, except as necessary for enforcement purposes – for example, as part of court documents.

Preserving the confidentiality of the investigations is critical to effectiveness, as well as to fairness. It serves to protect the privacy of individuals and the presumption of innocence. In so doing, it also prevents incomplete or inaccurate information from serving partisan purposes and undermining confidence in the fairness of the electoral process.

Following an investigation, the Commissioner may refer a matter for prosecution to the Director of Public Prosecutions, who decides whether charges should be laid. The Commissioner may, alternatively, enter into a compliance agreement in which the person recognizes having contravened the Act. It may be accompanied by conditions that the Commissioner considers necessary to ensure compliance with the Act. These agreements are published in the Canada Gazette and on our website. Where the public interest does not warrant formal enforcement, the Commissioner may also issue a caution letter.

I should point out that the enforcement mechanisms in the Canada Elections Act can and should be improved. The Act relies almost exclusively on offences and penalties that are not tailored to regulatory issues. On one hand, regulatory matters that could be addressed more effectively with administrative measures and penalties are subject to the delays and costs associated with criminal investigations and prosecutions. On the other hand, serious offences carry disproportionately light penalties, including maximum fines that are very low – usually $2,000 or $5,000.

It is therefore my intention to carry out an overall review of the compliance and enforcement mechanisms in the Act, and to submit a report to Parliament before the next general election. This will be in addition to my report on the more specific issue of "robocalls."

Conclusion

Canadians are proud of their electoral system. And they should be. However, recent events and media reports have shaken their confidence. As I indicated at the outset, the trust of electors in the integrity of the electoral process is an essential aspect of a healthy democracy.

Elections Canada performs a key function in this regard. When irregularities or improper conduct are brought to our attention, we have a responsibility to take action. We must look into them diligently, and we do. If the regime is inadequate and needs to be improved, it is my role to make those changes or to recommend legislative amendments.

We all have a role in preserving trust in our electoral process. This includes not only Elections Canada but the electors themselves, the candidates and political parties, and also the media. The quality of our democracy depends on the vigilance and conduct of all players involved.

Mr. Chair, we would be pleased to answer any questions.

Thank you.