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Completing the Cycle of Electoral Reforms – Recommendations from the Chief Electoral Officer of Canada on the 38th General Election


1.12 Provision of Transfer Certificates


The Canada Elections Act should permit the issuance of a transfer certificate to any elector who presents himself or herself at the wrong polling station as a result of a change in the assignment of polling stations or advance polls that took place after the issuance of the original voter information card to the elector.

The assignment of electors to specific polling stations or advance polling stations sometimes has to be changed after voter information cards have been sent out to those electors. A correcting information card is sent out to electors in these circumstances. Where this takes place there is a concern that an elector might not receive the new card in time, or might not remember or note the change in polling stations, and may still turn up at the original polling station. In those circumstances, the Act does not permit the elector to vote at that polling station.

In the 38th general election, the location of advance polling stations had to be changed in six electoral districts (Halifax, Fredericton, Fundy, Timmins–James Bay, Whitby–Oshawa and Nunavut) after the electors had been sent voter information cards. Although these electors were sent amending voter information cards, an adaptation was also prepared to deal with the situation if for some reason any of these electors showed up to vote at the advance polling station they had been originally advised to go to. The adaptation permitted the electors to vote at that advance polling station by transfer certificate.

1.13 Establishment of Mobile Polling Stations


Subsection 538(5) of the Act should be expanded to allow for the creation of mobile polling stations for any institution that serves as the ordinary residence of its residents who, for reason of age, health or other circumstances giving rise to their residence in the institution, may have difficulties in getting to the regular polls.

Currently, subsection 538(5) of the Act permits returning officers, with the approval of the Chief Electoral Officer, to create mobile polling stations. However, that section only provides that mobile polling stations can be created for two or more institutions where senior citizens or persons with a physical disability reside. There are other institutions in which individuals may reside who may also have difficulties in getting to the regular polling stations – for example, homeless shelters or homes for victims of domestic violence. Expanding the authority to create mobile polling stations for any institution that serves as the ordinary residence of individuals – who for reason of age, health or any other circumstance giving rise to their residence in the institution, may have difficulties in getting to the regular polling stations – will increase access to the polls for the electorate.

1.14 Access to Multiple-residence Buildings, Gated Communities and Other Premises


The electoral access rights provided in section 81 of the Canada Elections Act should be expanded.

First, candidates' rights of access to multiple-residence buildings should be expanded beyond single buildings containing multiple residences, to include any collection of residences where access to any particular dwelling is controlled by someone other than the residents of this dwelling. This would encompass the new development of gated communities.

Second, section 81 should be extended to include election officials for electoral purposes during an election.

Third, any person who has control over premises to which the public is generally invited and who has permitted a registered or eligible party or a candidate to conduct election advertising in or on those premises in that year or in that election period, should provide, on request, a similar opportunity to all other registered or eligible parties and all other candidates for election in that electoral district in that same year or election period.

As a corollary, it should be made clear that permitting a registered or eligible party or candidate to conduct election advertising at less than commercial value in or on premises to which the public is generally invited does not constitute a contribution.

Section 81 of the Act provides a limited right of entry to multiple-residence buildings during an election for candidates and their representatives:

81. (1) No person who is in control of an apartment building, condominium building or other multiple residence building may prevent a candidate or his or her representative, between 9:00 a.m. and 9:00 p.m. from

(a) in the case of an apartment building or condominium building, canvassing at the doors to the apartment or units, as the case may be; or

(b) campaigning in a common area in the multiple residence.

(2) Subsection (1) does not apply in respect of a person who is in control of a multiple residence building whose residents' physical or emotional well-being may be harmed as a result of permitting canvassing or campaigning referred to in that subsection.

Although section 81 provides candidates and their representatives with a right to enter a building containing multiple residences, it is not clear whether the section also guarantees candidates access to private residences located in separate buildings to which access to any single residence is controlled by someone other than the residents of that premises, or through a collective of persons of which the residents of a particular premises are only part – for example, a gated community. Like a multiple-residence building, however, access to a gated community may be controlled and denied through a common entry point – albeit to an area rather than to a single building.

The statutory predecessor to section 81 first appeared in the Act in 1993 and provided access to candidates and their representatives to any apartment building or other multiple residence for the purpose of conducting the campaign. That provision was amended, following the 1996 report Canada's Electoral System – Strengthening the Foundation, to include an express reference to condominiums. The evolution of modern forms of residency now requires that the provision be expanded to cover gated communities and other similar arrangements where an external individual or collective organization may deny access by candidates or their representatives to electors at their homes.

Furthermore, section 81 applies only to candidates and their representatives. The Act does not provide any automatic right of entry for elections officials involved in the revision of the list of electors through targeted revision. As it was explained in the earlier Report of the Chief Electoral Officer of Canada on the 38th General Election Held on June 28, 2004, returning officers carried out revision exercises to their lists of electors in the second week of that election period. During these exercises, revising officers visited targeted high-mobility addresses and identified areas with low registration rates. Revising agents then visited the targeted areas and registered electors in person, to update the list information. In the case of multiple-residence buildings, revising agents were dependent on the willingness of the person or entity in charge of the building to grant them access.

Under the earlier system of enumeration, enumerators had the statutory right to enter any apartment building or other multiple residence during reasonable hours for the purposes of conducting an enumeration (Canada Elections Act, R.S.C. 1985, c. E-1, s. 70, as amended by S.C. 1993, c. 19, s. 31). There is no similar authority available today for revising agents conducting a targeted revision – although this is an essential aspect of the maintenance of the National Register of Electors. In the 38th general election, there were reported incidents of landlords refusing revising agents access to multiple-residence buildings. Such refusals reduce the efficacy of targeted revision. For this reason, the rights granted to candidates and their representatives by section 81 should be extended to elections officials in the pursuit of election-related duties during an election period.

Finally, many premises to which the public is generally invited (e.g. shopping malls) constitute private property. The owner of that property has the right to permit or prohibit a candidate or a political party from campaigning on the premises during an election period. This is a right of property that should not be lightly tampered with. Campaigning may not be compatible with the particular premises in question.

However, once the person or persons who have control over the premises decide to permit one or more registered or eligible parties or candidates to electioneer on this type of property, it may be unfair to deny a similar right to other registered or eligible parties and candidates in the same electoral district – especially when the premises in question provide a significant focus for the gathering of large segments of the community.

To the extent that such premises may be the property of corporations, changes introduced by S.C. 2004, c. 19 (Bill C-24) would prohibit the provision of any free campaigning to a registered party (as such, this would amount to a prohibited non-monetary contribution to a registered party). Those amendments would equally prohibit the provision of campaigning opportunities only to select registered parties or candidates to the extent that such provision were to be part of a scheme to avoid the application of the contribution rules.

However, premises to which the public is generally invited, particularly in the case of large shopping malls, can be an important, and convenient, forum at which the electorate may gain electoral information. The Act should encourage the equal grant of campaigning opportunities to registered or eligible parties and candidates in such premises where such campaigning is complementary to the purposes of the premises.

For this reason, section 81 should also provide that any person, who has control over premises to which the public is generally invited and who has permitted a registered or eligible party or a candidate to conduct election advertising in or on those premises in that year or election period, shall provide a similar opportunity on request to all other registered or eligible parties and all other candidates for election in that electoral district in the same year or election period.

As a corollary, it should be made clear that permitting a registered or eligible party or candidate to conduct election advertising at less than commercial value in or on premises to which the public is generally invited does not constitute a contribution.

1.15 Right to Vote of Inmates Serving Sentences of Two Years or More


Sections 246 and 247 of the Canada Elections Act, which set out the process for voting in provincial correctional institutions, should be amended to provide a similar process for voting in federal institutions. This would ensure the existence of a process through which prisoners serving a sentence of two years or more might exercise their right to vote, pending a legislative response to the striking down of paragraph 4(c) by the Supreme Court of Canada in 2002.

Sections 246 and 247 of the Act set out the process whereby persons incarcerated in provincial correctional institutions can exercise their right to vote, by means of a special ballot. The Act provides no similar process for persons incarcerated in a federal penitentiary, because the current wording of those provisions reflects the prohibition in paragraph 4(c) of the Act that directs that every person who is imprisoned in a correctional institution and serving a sentence of two years or more is ineligible to vote. Prisoners serving sentences of two years or more are generally incarcerated in federal institutions.16 However, paragraph 4(c) was struck down by the Supreme Court of Canada in 2002 in its decision in Sauvé v. Canada (Chief Electoral Officer).17 As a result, all persons who are otherwise eligible to vote in a federal election are entitled to vote, regardless of the length of their sentence of incarceration.

In every by-election and general election since the decision of the Supreme Court of Canada in Sauvé, the Chief Electoral Officer has used his authority under section 17 of the Act to adapt sections 246 and 247 to provide a process for voting by individuals incarcerated in federal penitentiaries. This process has mirrored the existing processes for provincial correctional institutions. The adaptations were minor, and usually involved only the inclusion of references to federal ministers wherever the section in question referred to a provincial minister. The adapted provisions read as follows:

246. The federal and provincial ministers responsible for corrections shall each designate a person as a coordinating officer to work, during and between elections with the Chief Electoral Officer to carry out the purposes and provisions of this Division.

247. (1) Without delay after the issue of the writs, the Chief Electoral Officer shall inform the federal and provincial minister responsible for corrections of their issue and of the location of administrative centres.

247. (2) On being informed of the issue of the writs, each federal and provincial minister responsible for corrections shall

(a) inform the coordinating officer of the issue of the writs;

(b) designate one or more persons to act as liaison officers in connection with the taking of the votes of electors; and

(c) inform the Chief Electoral Officer and the coordinating officer for each relevant jurisdiction of the name and address of each liaison officer.

The maximum period for which an adaptation under section 17 of the Act may be in effect is the duration of the election period in which it was made. Therefore, the adaptation must be re-made for every election. The need for these adaptations will continue until Parliament provides a legislative response to the Supreme Court's ruling in Sauvé. Technically, adaptations may be made under section 17 only with respect to emergencies, unusual or unforeseen circumstances or errors. It is likely that the lack of any process for a segment of the population to exercise its right to vote might be considered to fall within one of these grounds; however, as the adaptations are identical for each election, a legislative amendment of the provisions in question along the same lines would remove the need for the Chief Electoral Officer to exercise the extraordinary adaptation power and remove any question as to the availability or need for the adaptation. In the event that Parliament legislatively responds to the Sauvé decision other than by repealing paragraph 4(c), the proposed amendments to sections 246 and 247 might either not require adjustment or be adjusted as part of the same exercise.

1.16 Voting by Electors Absent from the Country for More Than Five Consecutive Years


The limitation contained in paragraph 11(d) of the Canada Elections Act that prohibits voting by persons who have been absent from Canada for five consecutive years or more, and who intend to return to Canada as residents, should be removed.

The Special Voting Rules for electors temporarily resident outside Canada found in Division 3 of Part 11 of the Act (more particularly sections 222, 223 and 226) should consequently be reviewed to allow these persons to apply for registration or to remain listed in the register of electors absent from Canada, which is maintained by the Chief Electoral Officer.

Currently, the Act provides that persons who have been absent from Canada for less than five consecutive years and who intend to return to Canada as a resident may vote in accordance with the Special Voting Rules set out in Part 11 of the Act. The absence of a mechanism to allow those who have been absent from Canada for five consecutive years or more to vote effectively deprives this latter group of individuals of their right to vote, a right protected by the Canadian Charter of Rights and Freedoms.

In light of the Supreme Court of Canada's decision in Sauvé,18 it is questionable whether a Court would find that denying the right to vote to individuals who have been absent from Canada for a long time but who intend to return as residents is a reasonable limit on the right that can be demonstrably justified in a free and democratic society. It is indeed difficult to explain what pressing objective is served by distinguishing between those who have been absent from the country for five years as opposed to six, ten or twenty years. While it may be true in some cases that after a number of years of absence from Canada one's awareness of Canadian current affairs may diminish, the correlation between absence from the country and the level of knowledge of public affairs occurring in the country may not be sufficiently clear to constitute a reasonable ground to deprive someone of their right to vote. It should also be noted that awareness of current public affairs is not required from Canadian citizens living in Canada for them to have the right to vote. Finally, there is no significant operational impediment in extending the application of the Special Voting Rules currently available to Canadians living outside the country to those Canadians who have been absent from the country for more than five consecutive years.

This report therefore recommends that the above-mentioned prohibition from voting be removed.

The Special Voting Rules found in Part 11 of the Act should consequently be adjusted to allow individuals who have been absent for five years or more and who intend to resume residence in Canada to apply for registration or to remain listed in the register of electors absent from Canada, which is maintained by the Chief Electoral Officer.

1.17 Review of the Special Voting Rules


Parliament should review the entire process for electors who do not fall under the specialized circumstances, detailed in Division 4 of the Special Voting Rules (ss. 231–243.1), to vote by special ballot. This should be a far-ranging review that considers whether the right, the process and the protections set out in those rules are appropriate to current needs and technological capabilities, with a view to ensuring that electors are best able to exercise their democratic rights.

The preceding two recommendations set out specific reforms to particular aspects of the Special Voting Rules. However, the time has come to reconsider the Special Voting Rules in their entirety –as they apply to voting by electors who do not fall under the specialized circumstances for voting by special ballot.

Special Voting Rules were first introduced during the First World War for Armed Forces electors. Since then, they have been developed and expanded, to the current form of universal access for all electors, which was achieved in 1993.

The Special Voting Rules provide an additional means for electors who can vote neither in an advance poll nor at their polling station on election day. There are four different procedures specified for voting by special ballot, according to the circumstances:

The first three procedures are specific and the last is general; all, however, involve the transmission to a returning officer or to Elections Canada of a ballot cast outside of a polling station. An elector to whom the three specific circumstances do not apply can vote by special ballot under Division 4 of the Special Voting Rules (ss. 231–243.1), providing that the elector:

Once an elector is registered to vote by special ballot in an electoral event, he or she cannot vote in any other way.20

These general Special Voting Rules were established in their current form in 1993.21 They reflect the technology and circumstances of that time. Since then, the relevant technology and circumstances have evolved to such an extent that the rules should be reviewed and updated.

In illustration of the value of such revision one need only consider the situation of electors unexpectedly admitted to hospitals in the last days of an election, after the close of the advance polls. Such electors may have intended to cast their ballots on election day, thereby receiving the benefit of the full election period to consider their vote. Consequently, they may not have taken advantage of the advance polls to vote or registered to vote by special ballot. While Elections Canada has developed a process to assist hospitalized electors to register and vote by special ballot, electors admitted to hospital after the sixth day before polling day cannot legally take advantage of this process.

It is not possible for the Chief Electoral Officer during an election to adapt legislative requirements to accommodate these electors, because the adaptation power under section 17 of the Canada Elections Act can be used only for emergencies, or for unusual or unforeseen circumstances – that is, circumstances that Parliament was not likely to have been able to foresee and deal with in the Act. The hospitalization of electors in the closing days of an election is a regular occurrence, and therefore neither unusual nor unforeseen by Parliament.

Nor can mobile polls be established for hospitals, because mobile polls may be established only for institutions in which seniors or persons with a physical disability reside. Temporarily hospitalized electors are generally not considered to have changed their official residence during the period of hospitalization.

In the past two elections in particular, there have been complaints by hospital administrators and a number of electors admitted to hospitals in the few days before an election that these electors were deprived of their right to vote. In many of these cases, hospitalization was unforeseen – so, these electors would not have presented themselves at advance polls. Furthermore, electors hospitalized after the sixth day before polling day could not avail themselves of the Special Voting Rules.

Developments in modern technology may render the current time restriction on registration unnecessary: registration could be carried out up to and including election day. A revision in the Act to accommodate such technological improvements would help to address the situation facing electors who are hospitalized during the election. Adjustments would also likely have to be made to the details of the registration process.

Hospitals are merely one example of an area for reform; other aspects of the existing Special Voting Rules also require re-examination – for example, the prohibition on electors who have registered for a special ballot from voting in any other way. In past elections, this prohibition resulted in hardships and confusion – notably in instances where electors applied for a special ballot but did not receive their special ballot kits before the advance polls (thereby leading them to vote in the advance polls to ensure that they would not lose their vote through some administrative error) and in instances where electors who registered for a special ballot did not receive the special ballot kits by polling day. In the 38th general election, the Chief Electoral Officer adapted the Act to permit an elector in this latter circumstance to vote in the returning office on polling day.

The importance of the universal right to vote, the diverse circumstances that may lead electors to forfeit that right, and the changing technology and circumstances that may address these problems together warrant a far-reaching review of the Special Voting Rules as they apply to electors who do not fall under specialized circumstances.

1.18 Extension of the Limitation Period for the Prosecution of Offences


Section 514 of the Act should be amended to extend the period in which a prosecution under the Canada Elections Act may be instituted from 7 years to 10 years after the day on which the offence was committed.

Section 514 of the Actprovides that a prosecution for an offence under the Act must be instituted within 18 months of the Commissioner of Canada Elections becoming aware of the facts giving rise to the prosecution; however, in no case may a prosecution be instituted more than seven years after the day on which the offence was committed.

Prior to the amendments brought to the Act by Bill C-24, An Act to amend the Canada Elections Act and the Income Tax Act (political financing),22 section 514 provided that no prosecution could take place more than 18 months after the day on which the offence was committed. To allow for more effective enforcement of the new political financing rules, Parliament extended this period to seven years.

A seven-year period was chosen because this was calculated as the maximum time between the time at which a contribution may be made and that at which it would be reported in accordance with the Act. Such a period is necessary to ensure compliance with the new political contribution limits. For example, a good or service given to a candidate for an election five years later may be deemed, 18 months after polling day, to be a contribution under section 450. This amounts to a period of 6.5 years – which was rounded up to 7 years for the purposes of section 514.

Since Bill C-24 became law,23 allegations made at the Commission of Inquiry into the Sponsorship Program and Advertising Activities (the Gomery Commission) made it apparent that a limitation period of seven years may not be sufficient to ensure effective enforcement of the Act. Specifically, the Commission heard of matters that would have taken place before or during the 1997 general election. The present limitation period is not sufficient to allow the Commissioner of Canada Elections to investigate allegations of the nature made before the commission of inquiry.

A limitation period is a recognition of the fact that investigations after a given period of time may be inherently unfair because memories fade and records may be destroyed or lost. It is necessary to balance these considerations with the need for effective enforcement of the Act.

It should be noted that the Criminal Code provides that no proceeding shall be instituted for a summary offence after a period of six months after the time when the subject matter of the proceedings arose, but provides no limitation period for indictable offences.24

Taking into account recent disclosures made before the Gomery Commission, and balancing the goals of effective enforcement of the Act with the need to ensure fairness in any prosecutions brought under the Act, this report recommends that the period in section 514 during which a prosecution may be instituted be extended from 7 years to 10 years after the offence was committed. The period in which the Commissioner must commence a prosecution after becoming aware of the facts of the case should remain at 18 months.

1.19 Removing the Sunset Provision in Bill C-3


Section 26 of S.C. 2004, c. 24 (Bill C-3), the provision that automatically repeals, on May 15, 2006, the amendments to the Canada Elections Act made by Bill C-3, should be repealed.

Bill C-3, which became An Act to amend the Canada Elections Act and the Income Tax Act when it received royal assent on May 14, 2004,25 was adopted in response to the November 2003 decision of the Supreme Court of Canada in Figueroa v. Canada (Attorney General).26 In that decision, the Court found that restricting certain rights – to issue tax receipts, to receive unspent election funds from candidates and to list party affiliation on ballots – to parties that ran at least 50 candidates in a general election, and thereby achieved the status of registered parties, infringed on section 3 of the Canadian Charter of Rights and Freedoms.

In Bill C-3, the Canada Elections Act was amended to replace the 50-candidate threshold with a single-candidate requirement for a party to be registered. At the same time, further registration requirements were added, along with other measures to ensure that parties seeking to register have a genuine interest in electoral competition. The following are the main changes made to the Act as a result of the adoption of Bill C-3:

Amendments made to the Act by Bill C-3 will cease to have effect on May 15, 2006, two years after it came into force28 or, if Parliament is not then in session, 90 days after the beginning of the next session.29 The Minister at the time of the adoption of Bill C-330 made the suggestion that a broader examination of the Canada Elections Act be conducted by the Standing Committee on Procedure and House Affairs over the year following the adoption of Bill C-3, but the Committee has not yet had the time or opportunity to conduct this review.

If legislative action is not taken by the end of the two-year period, a highly problematic legal void will be created: while the Act will continue to refer to registered parties and the rights and obligations of these parties, there will no longer be any legislative basis for registration of political parties on which the Chief Electoral Officer can rely. This is because the provision setting out the conditions31 for registration will have been repealed automatically by the sunset provision contained in Bill C-3. It should be noted that section 370 as it existed before Bill C-3 came into force cannot be "resurrected" without Parliament's intervention.

There will no longer be a deregistration process either: this provision32 was also amended by Bill C-3. Many other provisions in which consequential amendments were made to support the new system of party registration will also be repealed as a result of the automatic application of the sunset provision.

Therefore, this report recommends that the provision that automatically repeals the amendments made by Bill C-3 on May 15, 2006, be repealed. By doing so, Parliament would give itself more time to deal with the consequences of the Figueroa decision without being forced, yet another time, to adopt legislation at the same speed required of it in 2004.


16 See section 743.1 of the Criminal Code.

17 [2002] 3 S.C.R. 519.

18 Cf. recommendation 1.15 above.

19 Summarized in the June 2004 Elections Canada backgrounder, "Voting By Special Ballot," available on the Elections Canada Web site at www.elections.ca > Publications > On-line publications.

20 As set out in "Voting By Special Ballot":

"Elections Canada draws up the lists of electors registered to vote by special ballot (other than Canadian Forces electors and electors residing temporarily outside the country), in each polling division in each electoral district, and sends them to the returning officers before the advance polls and again before polling day. These lists include the surname, given name, civic address and mailing address of electors who have applied to vote by special ballot. To prevent these electors from voting twice, the returning officers indicate on the list of electors that they have been given a special ballot."

21 The basic form of the rules was created in S.C. 1993, c. 19. Adjustments were made by S.C. 1996, c. 35 and S.C. 2000, c. 9.

22 S.C. 2003, c. 19, s. 63.

23 The Act came into force on January 1, 2004.

24 See Criminal Code, s. 786(2) relating to summary conviction offences. There is one exception to the absence of a limitation period for indictable offences: see s. 48(1), providing that the limitation period for instituting a proceeding with respect to the using of force or violence for the purpose of overthrowing the government of Canada or a province is three years after the offence is alleged to have been committed.

25 S.C. 2004, c. 24.

26 [2003] 1 S.C.R. 912; 2003 SCC 37.

27 There are currently 12 registered parties (see www.elections.ca for details). Since May 15, 2004, nine parties have applied for registration. Of these, two parties have now become eligible for registration and four others have been refused. The remaining three applications are still being verified (data as of September 9, 2005).

28 Readiness Notice published on May 15, 2004, by the Chief Electoral Officer pursuant to section 27 of S.C. 2004, c. 24.

29 Section 26 of S.C. 2004, c. 24.

30 The Honourable Jacques Saada, then Minister of State and Leader of the Government in the House of Commons, indicated to the House, in his speech of February 2004, that he had written to the Standing Committee on Procedure and House Affairs to encourage the Committee to conduct a broader examination of the Canada Elections Act in light of the Figueroa decision and to ask that it make recommendations to the government in the form of a draft bill within a year's time.

31 Section 370 of the Act as amended by Bill C-3: for a party to become eligible for registration, it must have at least one candidate whose nomination has been confirmed for an election, and its application must have been made at least 60 days before the issue of the writs for that election.

32 Section 385.