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Compliance Review – Interim Report –A Review of Compliance with Election Day Registration and Voting Process Rules

Origin, Mandate and Scope of the Review

On May 18, 2012 Justice Thomas R. Lederer, of the Ontario Superior Court of Justice, issued a decision declaring the results of the contested federal election for the district of Etobicoke Centre to be "null and void".Footnote 1

The reasons Justice Lederer gave in his decision, which supported the losing candidate's challenge to the election in Etobicoke Centre, hinged on the significant number of "irregularities" — administrative errors by election poll officials — found in examining documented records for ten polls from that district's 236 polling stations.

The judge found that within these ten polls:

  • Some 79 votes should not have been allowed, and within those;
    • 52 votes were invalid on account of failure of registration; and
    • 27 votes were invalid on account of failure of vouching.

Most of the votes Justice Lederer "set aside" in his review of voting records were deemed invalid due to a complete lack of required documentation. Others he rejected because poll officials improperly recorded, or entirely omitted to record, legally "material" information. Because the number of votes cast in error within these ten polls significantly exceeded the 26-vote plurality that had originally decided the election in a judicial recount, the judge declared the election overturned.

That decision was subsequently appealed to the Supreme Court of Canada by the candidate who had been elected as the Member of Parliament for Etobicoke Centre following the 2011 federal election. The Supreme Court ruled in support of the appellant and confirmed the original election result. It found that no factual indication had been provided to prove that breaches of statutory provisions had resulted in ineligible persons being permitted to vote. Therefore the evidence before the Court was deemed insufficient to meet the test for annulment of an election prescribed by the Canada Elections Act. Nonetheless, the case revealed that a number of serious errors had been made by election officers in the course of their duties on polling day in the 2011 Etobicoke Centre election, and made it clear that in other circumstances such errors could contribute to a court overturning an election.Footnote 2

Ten days following Justice Lederer's original decision, the Chief Electoral Officer of Canada, Marc Mayrand, made this statement to the Canadian Parliamentary Standing Committee on Procedure and House Affairs:Footnote 3

"In light of recent events we have readjusted our plans to place a major priority on strengthening measures aiming to improve compliance with the procedures and standards applicable on voting days. Our intention is threefold: first, to review the voter registration and voting process based on what transpired in Etobicoke Centre; second, to assess the effectiveness of existing checks and balances; and third, to engage key stakeholders in implementing solutions for the 2015 election. We believe this is critical, regardless of the outcome of the appeal." [Emphasis added.]

After considering how best to undertake the Compliance Review, Elections Canada's management decided that the project should be led independently by an individual from outside of their organization. It was further agreed that the person selected as the Reviewer should possess extensive knowledge of the Canadian federal electoral system and administration of electoral processes generally. They would need to be able to provide an independent and objective assessment of compliance issues as a result of: undertaking a thorough review of procedures and related documentation; analyzing conformity measurements from audit activity; reviewing academic and survey research; and actively engaging key stakeholders in a consultative process, both to determine the causes of election officer errors and to identify effective and sustainable solutions to address them.

An electoral management consultant (this author)Footnote 4 was commissioned to design the overall Compliance Review project, develop a comprehensive workplan for project delivery, and lead efforts needed to:

  • Review requirements for compliance on the part of election officers working on polling day;
  • Measure actual compliance levels associated with
    • the ten disputed polls in Etobicoke Centre;
    • a statistically representative sample of polls from the last federal election; and
    • a sample from the three district by-elections held in the Fall of 2012;
  • Engage stakeholders in establishing the causes of non-compliance and in proposing practical solutions that would address those causes in time for the 2015 general election; and
  • Document the findings and recommendations resulting from the Review process.

The project workplan defined the scope of the Review to include:

  • Analysis of the roles, responsibilities and compliance requirements for each type of election officer present at polling locations on Election Day;
  • Audits to determine the extent of documented non-compliance with voter registration and identity vouching processes;Footnote 5
  • Assessment of procedures related to the recruitment, hiring and training of these election officers as well as the management and support staff who work in the returning offices;
  • Practices related to the return of voting and registration materials from returning offices to Elections Canada headquarters in Ottawa;
  • Recommendations for the most effective solution to address the cause, or causes, of non-compliance and, if necessary, to include identification of required legislative changes needed to implement those recommendations.

Defined as out-of-scope was any consideration of roles and responsibilities for elections officers performing duties associated with Voting in the Returning Office or Voting by Mail, or their role in administering Canadian Forces Voting, Advance Poll Voting, or Mobile Poll Voting.

However, given that the same basic rules apply for Mobile and Advance voting, it is being assumed that recommendations arising from the review will also be considered for application to these two voting methods.

Footnote 1 Wrzesnewskyj v. Attorney General (Canada), 2012 ONSC 2873 (CanLII); available online at: http://www.iijcan.org/en/on/onsc/doc/2012/2012onsc2873/2012onsc2873.html

Footnote 2 Supreme Court of Canada, Opitz v. Wrzesnewskyj, 2012 SCC 55; available online at: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/12635/1/document.do

Footnote 3 Canadian House of Commons, Standing Committee on Procedure and House Affairs, Evidence, Tuesday, May 29, 2012. Available online, between markers 1140 & 1145, at: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5614754&Language=E&Mode=1&Parl=41&Ses=1

Footnote 4 Biography of the Reviewer appears in Annex J.

Footnote 5 Compliance problems with voter registration and vouching were the central issues raised in the Etobicoke Centre election challenge case. These two areas are also the only components of Election Day poll worker activity that feature extensive documented audit trails.