Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election

III – Governance

Introduction

The Canada Elections Act is the legal framework that establishes the position of Chief Electoral Officer and invests the incumbent with the majority of his or her responsibilities. This chapter addresses a number of matters relating to the governance of the agency that supports the Chief Electoral Officer in his duties. Three main themes are covered: collaboration with other electoral agencies at the national and international levels, modernization of the communications and exchanges provided for in the Act and the management of human resources.

Elections Canada has long collaborated with electoral agencies in other Canadian jurisdictions. This has encouraged all the agencies involved to draw on one another's experience and to jointly identify and adopt best practices in electoral management. We now wish to extend this collaboration and develop joint initiatives to better serve electors and to increase efficiency – in particular, by entering into service agreements with each other and common supply arrangements (recommendation III.1).

Similarly, Elections Canada has acquired an international reputation for providing technical assistance to electoral agencies in emerging democracies. Conducted at the request of the Government of Canada and funded by the government through ad hoc transfer payments, these electoral assistance projects contribute to Canada's broader international policy objectives. The Act should formally grant the Chief Electoral Officer the authority to commit the funds that the government transfers to Elections Canada for that purpose (recommendation III.2).

As mentioned earlier in this report, allowing electors and political entities governed by the Act to conduct transactions with Elections Canada using electronic means of communication would help to improve efficiency and accessibility. Therefore, we propose allowing for authentication methods other than traditional signatures for the transmission of information and the filing of returns (recommendation III.3).

Finally, this third chapter addresses a number of issues relating to the management of human resources. The proper and efficient conduct of an election relies on the availability and commitment of qualified staff to carry out work leading to an election and election period activities. The Public Service Labour Relations Board rendered a decision on this subject several months ago, ruling that such work does not constitute services necessary for the safety or security of the public that could be subject to an essential services agreement with the unions. We therefore recommend that, while remaining unionized, Elections Canada employees not have the right to participate in work stoppages initiated by their respective unions. This measure would enable Elections Canada to fulfill its mandate of being ready to conduct an election at all times (recommendation III.6). For the same reason, the Act should be amended to authorize the temporary suspension of a returning officer if that person is unable to satisfactorily carry out
pre-event assignments or election period activities (recommendation III.8). We also suggest that the position of field liaison officer, which was tested in the past three elections, be recognized in the Act (recommendation III.7).

These recommendations and the others contained in this chapter – media presence at polling sites (recommendation III.5) and the right to vote of prisoners serving a sentence of two years or more (recommendation III.4) – aim at facilitating the administration of the Act and enhancing the governance of the electoral process.

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III.1 Contracting Authority of the Chief Electoral Officer

The Chief Electoral Officer currently has an implied contracting authority that supports the delivery of his legislative mandate. The ability of the Chief Electoral Officer to contract is essential to the independence of his Office as well as to the discharge of duties related to the conduct of an election. Amendments to the Canada Elections Act are desirable for clarifying this authority as well as for allowing the Chief Electoral Officer to contract jointly with other electoral agencies and to provide the authority to returning officers to sign leases in his name.

Analysis and discussion

Procurement needs of the Chief Electoral Officer

The House of Commons Standing Committee on Access to Information, Privacy and Ethics noted the special nature of the Office of the Chief Electoral Officer and the need to shield it from political interference in the Committee's May 2005 report, A New Process for Funding Officers of Parliament:

Unlike most other Officers of Parliament, the Chief Electoral Officer is not an ombudsman. He is responsible for the delivery of two fundamental democratic rights: the right to vote, and the right to be a candidate in an election. In accordance with this unique role, the independence of his Office from political influence is safeguarded in a number of ways, including the funding mechanism, but more importantly, the appointment and removal processes.

Given the need to protect the independence of the Office of the Chief Electoral Officer, the Act¹⁰³ has consistently been applied as conferring contracting authority on the Chief Electoral Officer for the procurement of goods and services related to the mandate of his Office.¹⁰⁴ The imperative of removing any perception of political interference in election administration favours granting contracting authority to the independent officer of Parliament appointed to administer the process, as opposed to a minister from the governing party.

Since the creation of the Office in 1920, the Chief Electoral Officer has consistently used the independent contracting authority to carry out his own procurement activities. Even after Parliament adopted provisions in the Government Organization Act, 1969 (Bill C-173) that confer on the Minister of Public Works contracting authority for the procurement of all government materiel,¹⁰⁵ the Office of the Chief Electoral Officer has continued to enter into contracts independently to meet Elections Canada's needs for both goods and services. However, whenever it is possible and does not lead to a loss of confidence in the integrity of the electoral process, the Office of the Chief Electoral Officer entrusts this task to the Department of Public Works in order to benefit from that department's capabilities.¹⁰⁶

Parliament recently adopted provisions to grant to the Minister of Public Works and Government Services the exclusive authority to acquire services (in addition to materiel) for the whole of government, through an amendment to section 9 of the Department of Public Works and Government Services Act contained in the Budget Implementation Act, 2005.¹⁰⁷ The government has yet to fix a date for the coming into force of this amendment. That said, there is no indication in the parliamentary debates that Parliament intended to confer on the Minister exclusive contracting authority over the procurement of services for the Office of the Chief Electoral Officer. As the 1969 changes did not have this effect with respect to the procurement of materiel, and without an explicit indication of the intent to change the situation with respect to services, no such conclusion can be drawn. Such a change would constitute a profound policy shift that legislators would have been quick to underline.

Nevertheless, it is recommended that the Canada Elections Act be amended to confirm the contracting authority of the Chief Electoral Officer, reflecting long-standing practices that have served Canadian democracy well. By removing any possible confusion about the existence of an independent contracting authority for the Chief Electoral Officer with respect to the procurement needs of his Office, an amendment to the Act that explicitly overrides section 9 of the Department of Public Works and Government Services Act would further strengthen the independence of his Office and help maintain confidence in the integrity of the electoral process. A number of agencies already receive this exemption, including the Canadian Food Inspection Agency,¹⁰⁸ the Canada Revenue Agency,¹⁰⁹ the Canadian Institutes of Health Research¹¹⁰ and Parks Canada.¹¹¹

Ability to enter into agreements with other electoral agencies in Canada to offer or receive services

In her November 2005 report,¹¹² the Auditor General of Canada recommended that "Elections Canada, in collaboration with other public sector organizations, should pursue its efforts and explore additional ways to rationalize and improve the overall efficiency of data collection and management of information on Canadians and Canadian geography." While Elections Canada has a long history of leveraging initiatives carried out by other electoral agencies to achieve significant savings – indeed, Elections Canada's response to the Auditor General's report noted that there were 36 existing agreements with various federal, provincial, territorial and municipal agencies to support voter registration – much more could be done.

As election administration becomes increasingly complex and technology evolves to allow for improved systems and added opportunities, Elections Canada could effectively carry out common initiatives with other electoral agencies in Canada. For example, electoral agencies could collaborate on the development of public education and outreach tools and programs; this would allow Elections Canada and these agencies to improve their services and use public funds more efficiently. In the same way, electoral agencies that are studying similar initiatives, such as electronic voter registration, could pool their resources in order to share some of the costs of development, integrate their systems and eventually facilitate the registration of electors from one jurisdiction to another.

The Canada Elections Act should, therefore, be amended to provide an explicit authority for the Chief Electoral Officer to enter into an agreement:

• To do any thing for or on behalf of another electoral administration in Canada if the Chief Electoral Officer is authorized to do that thing under the Canada Elections Act or any other Act of Parliament. The Chief Electoral Officer should be authorized to charge for such services and, on receipt of payment, should be required to forward it without delay to the Receiver General.¹¹³
• To have another electoral administration in Canada do any thing for or on behalf of the Chief Electoral Officer that allows him to deliver on his mandate under the Canada Elections Act or any other Act that the Chief Electoral Officer is responsible for administering. Claims for such services rendered to the Office of the Chief Electoral Officer should be paid by separate cheques issued from the Receiver General.
• With one or more electoral administrations in Canada for contracting with suppliers in order to realize common objectives, in the context of the Chief Electoral Officer's mandate under the Canada Elections Act or any other Act that the Chief Electoral Officer is responsible for administering.

Leases for returning offices and polling sites

Under section 98 of the Act, an explicit authority is provided to the returning officer "to rent one or more offices for the revision of the preliminary lists of electors." Aside from this explicit authority, the Act contains no provision about the entering into of leases during an election period. However, several provisions imply that an authority to enter into other leases rests with the returning officer in each electoral district. The following are examples of such implied authorities:

• opening a returning office (subsection 60(1)) and an office for each additional assistant returning officer (subsection 30(2))
• establishing a polling station for each polling division (subsection 120(1) and section 122)
• establishing a central polling place (subsection 123(1))

The responsibility for renting office space was undoubtedly conferred on returning officers because of the large number of leases required during an election and the fact that the returning officers have local knowledge of their respective electoral districts. Indeed, it would be very difficult for the Office of the Chief Electoral Officer to enter into the tens of thousands of leases required in an election period.

Despite these operational considerations, it may be advisable to confer on the Chief Electoral Officer the authority to enter into the leases, accompanied by an explicit power to delegate this authority to the returning officer in each electoral district. This change would more accurately reflect current realities.

Even though the Chief Electoral Officer is not a party to the lease between the returning officer and the landlord, there is a public perception of the Office of the Chief Electoral Officer as the signatory. This perception undoubtedly flows from the fact that the rent is paid by the Chief Electoral Officer; however, it complicates matters in the case of any litigation arising from the rented premises, such as where an elector was injured on site during a fall. It is common in such instances for the Office of the Chief Electoral Officer to be named as a party in any ensuing litigation, despite the fact that it was not a party to the lease. In recent years, the Office of the Chief Electoral Officer has not objected to this.

A more transparent solution would be to have the Act provide that the Chief Electoral Officer is the signatory of the lease. As the Office of the Chief Electoral Officer pays for the rented space, defends against any allegations of liability arising from the leased premises, settles such claims, pays damages and is seen by the public as the lessee, a statutory recognition that the Chief Electoral Officer is the contracting authority would be consistent with modern realities.

Moreover, providing authority to the Chief Electoral Officer to enter into these leases could resolve an existing problem created by the wording of subsection 60(1) of the Act:

There has been uncertainty as to whether this provision allows a returning officer to rent an office before the issue of the writ when this is necessary to ensure that an office will be available at the drop of the writ. For several years, it has proved quite difficult to secure space in some regions of the country that are experiencing an economic boom. Given that subsection 60(1) may be interpreted as authorizing the returning officer to lease space for his or her office only after receiving notice of the issuance of the writ, a delay in finding adequate space may lessen the returning officer's ability to deliver on his or her statutory mandate.

To provide a legal foundation for renting space before the issue of the writ, the Chief Electoral Officer must issue instructions to returning officers in such regions under paragraph 16(c) of the Act. Once again, it would be preferable to provide the Chief Electoral Officer with the authority to enter into the leases that are required in an electoral district for the conduct of an election. When he deems it necessary to ensure the proper conduct of the election, the Chief Electoral Officer could rent such a space in advance in order to ensure that it is available to the returning officer for the opening of his or her office, as required by subsection 60(1).

The authority to enter into these leases should be accompanied by the power to delegate this authority to a returning officer. As mentioned above, it is impossible for the Office of the Chief Electoral Officer in Ottawa to sign each of the tens of thousands of leases that are required during an election. Furthermore, within the federal electoral administration, the returning officers are those with the local knowledge that is essential to finding suitable space.

In sum, it is recommended that the Act be amended to provide the Chief Electoral Officer with statutory authority to enter into all leases required in an electoral district for the purposes of an election (including for returning offices, revising offices and polling sites). This should include the power to delegate the authority to sign leases in the Chief Electoral Officer's name to a returning officer during an election period, or at any other time when the returning officers are carrying out pre-writ assignments, on the conditions that the Chief Electoral Officer may choose to impose. Since the passage in 2007 of provisions for fixed election dates, and particularly in the context of majority governments, the Office of the Chief Electoral Officer and returning officers would be better able to plan the most suitable time for entering into these leases and ensure that all spaces required for the election period are available.

Section 98 of the Act should also be amended so that the responsibility of renting offices for the revision of the lists of electors no longer falls to the returning officer. The amended provision would specify that the returning officer must open such an office in the space rented by the Chief Electoral Officer. Similarly, subsection 60(1) of the Act, which provides for the returning officer opening his or her office, should be amended to clarify that the returning officer must open this office in the space rented by the Chief Electoral Officer for that purpose.

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III.2 International Assistance and Co-operation

Since the creation of the Office of the Chief Electoral Officer in 1920, the federal electoral agency has acquired significant expertise in the administration of elections and referendums. It has gained considerable expertise while conducting 27 general elections, 2 national referendums¹¹⁴ and countless by-elections.

It is not surprising, then, that new and emerging democracies often contact the Government of Canada, or the Chief Electoral Officer directly, to request assistance and advice as they set out to conduct their own electoral events. The House of Commons Standing Committee on Foreign Affairs and International Development has recognized Elections Canada's highly regarded international role.¹¹⁵

Despite the fact that the international assistance and co-operation activities of the Chief Electoral Officer are well known and are, for many, a source of national pride, the Canada Elections Act does not mention any mandate in that regard. In fact, Elections Canada's international role has evolved over the years, most often as a result of requests from the Government of Canada made through the Department of Foreign Affairs or the Canadian International Development Agency (CIDA).¹¹⁶ Elections Canada's expertise has thus been called upon to respond to assistance and co-operation requests received from other countries. Under this approach, Parliament is kept informed of Elections Canada's international involvement through the agency's departmental performance reports.¹¹⁷

The silence of the Act on this subject is in contrast to the situation in Quebec, where section 485 of the Election Act provides as follows:

Some electoral management bodies of other established democracies have an explicit mandate in their enabling statute that authorizes them to conduct international assistance and co-operation activities. For example:

• The Australian Electoral Commission is mandated "to provide, in cases approved by the Minister for Foreign Affairs and Trade, assistance in matters relating to elections and referendums (including the secondment of personnel and the supply or loan of materiel) to authorities of foreign countries or to foreign organisations."¹¹⁸
• The newly created Electoral Commission of South Africa, a national commission that is very active on the international scene, has the mandate to "promote co-operation with and between persons, institutions, governments and administrations for the achievement of its objects," which include "to strengthen constitutional democracy and promote democratic electoral processes."¹¹⁹
• The United Kingdom's Electoral Commission may, among other things, at the request of a national or regional parliament or government in a country other than the UK, "provide the body with advice and assistance as respects any matter in which the Commission have skill and experience."¹²⁰
• Mexico's Instituto Federal Electoral (IFE) has an international mandate to "coordinate the exchange of information, cooperation and technical and material assistance projects" [translation].¹²¹ The IFE is a major international assistance and co-operation body in Latin America and elsewhere that has maintained close relations with Elections Canada since it was founded in 1990.

These explicit mandates provide assurance to the agencies that their international activities are expressly authorized by their parliament. In the same way for Canada, such a mandate within the Act would provide formal parliamentary authority for the Chief Electoral Officer to make payments, as required, for this type of activity. It is understood, however, that with respect to assistance provided to electoral agencies of other countries at the request of the government, the funds for those projects would be provided by the agency or the federal department that asks Elections Canada to provide that international assistance.

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III.3 Electronic Signatures and Transactions – General Clause

The Chief Electoral Officer should be able to authorize, for electronic transaction purposes, a non-signature authentication means that would be secure and would ensure the integrity of the electoral system and the protection of personal information transmitted electronically. This measure would enable participants in the electoral process – electors, political entities or agents – to conduct business with Elections Canada through more modern and rapid communication channels.

The rapid evolution of information technologies enables governments and businesses to provide citizens with expeditious, customized services. A number of federal departments and agencies offer on-line services, which are now a part of daily life. For example, Service Canada administers an on-line employment insurance benefit claim system. The Canada Revenue Agency allows some categories of taxpayers to file their tax returns on-line and manage their personal files. Citizenship and Immigration Canada also authorizes some applications to be made on-line, particularly those related to studying in Canada.

The current wording of the Canada Elections Act considerably limits the possibility of improving services to electors, candidates and political parties through the use of information technologies.

Indeed, the provision of on-line services requires some modifications to traditional means of authentication. Authentication is the verification of the declared identity of an individual or entity. It is generally used to ensure the legitimacy of transactions and to protect systems against potential irregularities.

Physically signing a document is one means of authentication. However, other means are now commonly used, such as a secure electronic signature, a personal identification number (PIN), the combination of a user name and a password, and third-party identity verification.

While different technologies make it possible to verify the identity of individuals and entities, the characteristics of available technologies vary depending on the level of security required for the transaction in question.

The Act currently requires a physical signature on a document in some 50 circumstances. Other expressions used in the Act have traditionally been interpreted as requiring a signature – for example, when a declaration is required. Finally, the Act allows the Chief Electoral Officer to prescribe the format of a large number of forms and oaths that it requires. Some prescribed forms require a signature.

In some of the circumstances in which a signature is required, an electronic signature is not a good solution. This is the case for most signatures required at polling stations and advance polling stations, for instance.

However, other circumstances in which the Act requires a signature or a declaration could allow for the use of an electronic signature or another means of authentication for the delivery of electronic services.

For example, when a person wants to be included in the National Register of Electors, section 49 of the Act requires a signed certification that he or she is qualified as an elector. As part of the electronic voter registration project, the Chief Electoral Officer should be able to prescribe another acceptable means of authentication. Once an individual's identity is verified, the individual could certify electronically that he or she is qualified as an elector.¹²²

Nomination of candidates is another example. When nomination papers are filed by a person whose candidacy is endorsed by a political party, the witness must provide, in addition to the nomination papers, a written statement signed by the party leader or the leader's delegate confirming that the person seeking nomination is in fact endorsed by the party. Here again, to ease the restrictions on the transmission of such statements to candidates, it would be desirable for the Chief Electoral Officer to be able to prescribe another means for transmitting and authenticating such statements.

A last example is the electronic transmission of a number of financial returns required by the Act. Currently, the Chief Electoral Officer allows political entities to produce and file a portion of their return through the Electronic Financial Return (EFR) software. However, because of the various statements required by the Act, the Chief Electoral Officer requires entities that submit their returns electronically to provide a paper copy of those returns, duly signed. To consolidate its offer of electronic services, the Chief Electoral Officer wishes to develop user authentication systems that would allow for the electronic provision of declarations.

By allowing the Chief Electoral Officer to determine the acceptable means of authentication for each electronic service he plans to offer, evidently taking into account the intended users and inherent information exchange risks, Parliament will pave the way for more effective delivery of services that are better adapted to user needs, without compromising security.

The latitude accorded to the Chief Electoral Officer will help to streamline and improve a number of services already offered, including transactions for the filing of financial returns by political entities, and also allow for the development and delivery of new services, such as electronic voter registration.

The Chief Electoral Officer will, of course, authorize only recognized, secure means of authentication that ensure the integrity of the electoral system and the protection of personal information.

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III.4 Right to Vote of Prisoners Serving a Sentence of Two Years or More

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 serving a sentence of two years or more, who are generally incarcerated in a federal penitentiary. However, since paragraph 4(c) was struck down in 2002 by the Supreme Court of Canada in Sauvé v. Canada (Chief Electoral Officer),¹²³ anyone who meets the other eligibility conditions has the right to vote in a federal election, regardless of the length of the sentence being served.

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, and more recently section 179, 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 ongoing use over a long period of the extraordinary power conferred on the Chief Electoral Officer to adapt the Act is undesirable and difficult to justify. That is why it was recommended in 2005¹²⁴ – and that recommendation is reiterated today – to amend sections 246 and 247 so as to set out a voting process for federal institutions similar to the one that exists for provincial correctional institutions.

The majority of the members of the Standing Committee on Procedure and House Affairs endorsed that recommendation.¹²⁵ However, in its response to the Committee's report, the Government noted that the Chief Electoral Officer exercised his power to adapt to remedy that situation, and it indicated that it did not plan to act on that recommendation.¹²⁶ We believe, however, that it is important for Parliament to remedy the situation so that the Act reflects the constitutional requirements. For this reason, we reiterate this recommendation.

Moreover, amending the Act to recognize the right to vote of prisoners serving a sentence of two years or more would remedy an inconsistency with respect to their participation in the election and referendum process. As things stand now, prisoners are able to participate in the electoral process by means of the Chief Electoral Officer's power to adapt. But that same power cannot be used to enable them to participate in a referendum.¹²⁷

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III.5 Presence of the Media at Polling Stations

The Canada Elections Act does not provide media with an explicit right of access to polling stations. Indeed, section 135 stipulates exactly who is authorized to be present at a polling station, and allowing free media access would be contrary to the restrictive nature of that section. Moreover, unfettered media access to polling stations would present some challenges with respect to provisions of the Act, which prohibit impeding electors at or near a polling station (section 142) and which edict that the vote is secret (section 163). Consequently, Elections Canada has a long-standing policy that journalists can film from the doorway of a polling station provided that they do not inconvenience or disturb electors in or near the polling station. However, this approach has been criticized by the media, which would like increased access to polling stations.

Analysis and discussion

For the electoral process to proceed in a manner that enables voters to solemnly consider their vote and make their choice in private, without distraction or delay, subsection 135(1) of the Act contains a list of persons who are entitled to be present at a polling station. The list includes election officers, candidates and their representatives, electors and, where needed, a person who is assisting an elector, as well as any observer authorized by the Chief Electoral Officer. As this list shows, the Act does not expressly allow media representatives to be present at the polling stations, contrary to what may be the case in other Canadian jurisdictions or other countries.

Such being the case, Elections Canada traditionally issues a media advisory during each election period to remind everyone that media representatives are not permitted to enter polling stations to film or broadcast voting by electors, including party leaders. The advisory also notes that media representatives may film proceedings from the doorway of these locations provided this can be done without interfering with or disturbing electors in or near the location. In the past, this long-standing policy has given rise to criticism by the media, as well as by registered parties wanting media coverage of their candidates as they vote.

During the 40th general election, in response to the media advisory issued by Elections Canada, a consortium of national broadcasters requested that the Chief Electoral Officer delegate to the returning officers his authority under paragraph 135(1)(e) of the Act to authorize the presence of observers at the polls so as to allow filming of party leaders as they cast their ballot. The consortium maintained that such access would be consistent with their right to freedom of the press under the Canadian Charter of Rights and Freedoms.

Under the Act, the discretion to authorize others to be present as observers at a polling station is given to the Chief Electoral Officer in Ottawa, who cannot delegate his decision-making power to local returning officers. Because of the number of media representatives potentially wanting to be present at the thousands of polling stations across Canada, it is not possible for the Chief Electoral Officer to receive and consider all these individual requests during an election period.

Nevertheless, on a trial basis during the 40th general election, the Chief Electoral Officer authorized the presence of representatives of this consortium at polling stations while the leaders of registered parties were casting their ballot. As was reported in the Report of the Chief Electoral Officer of Canada on the 40th General Election of October 14, 2008 (at p. 30), "This process should be re-examined because the strict conditions on media presence were not always respected, and because other media outlets and candidates issued complaints about preferential treatment."

In establishing a process to allow media presence at the polls, the following considerations must be balanced:

• maintaining the efficiency and integrity of electoral operations (including protection of the right of voters not to be impeded or disturbed at or near a polling station)
• respecting the principle of electoral fairness (that is, avoiding preferential treatment for any candidate)
• providing equal access to the different forms of media

From this perspective, the process used on a trial basis during the 40th general election could be improved by allowing media to film party leaders and the candidates running against them and by ensuring that all media are treated impartially.

Given the pressing demands from the media to have access to the polling stations, and the need to manage this access so as to preserve the efficiency of voting operations, it is recommended that clear authority be given in the Act to enable a balancing of the considerations mentioned above.

It is thus recommended that the Chief Electoral Officer be able to authorize media representatives, upon request, to be present and to film or photograph registered party leaders and the candidates running against them as they cast their ballot. The Act should provide expressly that the authority may be delegated to officers on his staff or to returning officers, in accordance with instructions issued by the Chief Electoral Officer.

This solution would be similar to what is found in Nova Scotia and British Columbia.

It should also be specified in the Act that the use of cameras in polling sites is restricted to media representatives whose presence has been pre-authorized and that those who violate this provision are committing an offence. This restriction would apply to electors and candidates' representatives alike, with the objective of preserving the secrecy of the vote and the privacy of persons in these polling sites.

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III.6 Right to Strike of Elections Canada Staff

The Public Service Labour Relations Act or the Canada Elections Act should be amended to provide that employees of the Office of the Chief Electoral Officer, while unionized, cannot participate in a strike. This recommendation seeks to prevent the electoral process from becoming destabilized by delays in the preparations for an election and thus maintain the trust of electors and other participants in the political process.

The primary mandate of the Chief Electoral Officer and his staff is to be prepared at all times to conduct a general election, by-election or referendum.¹²⁸ That level of readiness, however, cannot be achieved or maintained, as the case may be, if employees in some bargaining units are on strike.

The successful conduct of an electoral event depends not solely on what is done during an election period, but also on the various elements that are put in place and tested during the period preceding an election. Without those preparations, it would be impossible to conduct an electoral event without major difficulties.

That is why we have proposed, in a number of recommendations reports, to withdraw the right to strike of unionized Elections Canada staff and why we reiterate that same recommendation in this report.¹²⁹ That decision is based largely on the recent ruling of the Public Service Labour Relations Board, in which the Board concluded that the activities performed by the Computer Systems (CS) Group at Elections Canada, during or prior to the election period, do not constitute an essential service for the health and safety of the public within the meaning of the Public Service Labour Relations Act.¹³⁰

Analysis and discussion

Substantial preparations are required in anticipation of an election, including procurement of materials, their bundling for transport to the 308 electoral districts, updating of computer systems (including databases for updating maps, lists of electors and polling sites), preparation of maps, training of returning officers and their assistants, preparation of communications plans and development of advertising campaigns, as well as recruitment of staff to support election operations in Ottawa and core field staff to serve a multicultural and geographically dispersed population.¹³¹

These preparations take up a substantial portion of Elections Canada's resources. It generally takes two to three months, after stocks of materials have been replenished following a general election, to be up and running for the next election. In a minority government context, that next election can be called at any time.

As the Public Service Labour Relations Board indicated in a decision rendered in 2009:

When an election is called at a time other than those fixed in the Canada Elections Act, S.C. 2000, c. 9 (CEA), the government does not consult EC on when to hold the election and does not give EC advance notice of the election date. EC is informed of the election date at the same time as the public, that is, when the Governor in Council issues the election proclamation. Parliament's expectation is that, when an election is called, EC is prepared to conduct it.¹³²

Elections Canada would thus face major challenges if it had to conduct an election in accordance with the rules established by Parliament if all or some of its employees were on strike or had been during the period immediately preceding the election call.

Subsection 197(1) of the Public Service Labour Relations Act reads as follows:

197. (1) If a strike occurs or may occur during the period beginning on the date of a dissolution of Parliament and ending on the date fixed for the return of the writs at the next following general election and, in the opinion of the Governor in Council, the strike adversely affects or would adversely affect the national interest, the Governor in Council may during that period make an order deferring the strike during the period beginning on the day on which the order is made and ending on the twenty-first day following the date fixed for the return of the writs.

The power given to the Governor in Council under this provision would make it possible to defer or suspend a strike during the election period. Such an order, however, cannot be made until Parliament has been dissolved. It is therefore of no avail in ensuring that the preparations needed to conduct an election will be carried out in time for the election.

Parliament may also choose to legislate striking employees back to work. This method is ill-suited, however, to remedy the situation if the only employees affected by the legislation are Elections Canada employees. Moreover, to be effective, the legislation would have to be passed several months before an election was called to enable Elections Canada to carry out the necessary preparations.

Another solution considered in the 2005 recommendations report¹³³ would be for Elections Canada to conclude an essential services agreement with all of its unions.¹³⁴ Such a solution, while imperfect, would require unionized employees whose activities are deemed to be "essential for the health and safety of the public" under an agreement between the employer and the union to report to work in spite of a strike.

In the past two years, Elections Canada has tried to negotiate such an agreement with the union representing the employees in the CS Group. According to the union, an election and the preparations leading up to it do not constitute activities that are "essential for the health and safety of the public" within the meaning of the Public Service Labour Relations Act. The union, therefore, declined to conclude such an agreement, and the matter was referred to an adjudicator – a member of the Public Service Labour Relations Board – who found in favour of the union.¹³⁵

While agreeing that extensive preparations are required for the conduct of an election and that elections are important and central to our democracy, the adjudicator was not prepared to conclude that the safety and security of the public would be threatened if Elections Canada were unable to prepare for an election or to conduct it properly. Therefore, Elections Canada cannot conclude any essential services agreement with the unions that represent its employees. Following the decision of the Public Service Labour Relations Board, the other unions representing Elections Canada employees indicated that they intended to decline to conclude an essential services agreement with respect to activities relating to the preparation and conduct of an election.

In the adjudicator's opinion, the Governor in Council has a tool to provide Elections Canada with the time needed to prepare if an election happens to be called when all or some of its employees are on strike. The adjudicator found that the Governor in Council could defer calling an election, even if the Government were defeated in the House of Commons, to allow Elections Canada to prepare properly:

If Elections Canada is not ready to conduct an election because of a strike, the Governor in Council can simply decide to wait until the strike is over before proclaiming the election. As Professor Russell explained, even when the Government is defeated in the House of Commons on a confidence vote, the Governor in Council does not have to call an election immediately.¹³⁶

In our opinion, the timing of an election should not depend on the resolution of a labour dispute. Deferring an election, even if the Government were defeated in the House of Commons, is not a desirable solution.

The adjudicator was also of the view that the Public Service Labour Relations Act provides the Government with another tool in such a situation:

Although there is a minimum 36-day period for conducting an election (paragraph 57(1.2)(c) of the CEA), there is no maximum period. If the Governor in Council believes that EC needs two months to prepare for an election and another month-and-a-half to conduct it, he or she may establish a three-and-a-half-month election period and use section 197 [of the PSLRA] to defer the strike until after election day. Of course, that is the worst-case scenario. It supposes that EC is not at all ready when the election writ is dropped. In most cases, EC will be prepared to some extent.¹³⁷

Quite apart from the impact that a three-and-a-half-month election period would have on the election campaign of candidates and political parties, the tool identified by the adjudicator would not resolve Elections Canada's difficulties. Indeed, the Canada Elections Act requires that certain activities be accomplished within a fixed number of days after the issue of the writs. Among them are the opening of the offices of returning officers without delay after receiving the writs (section 60), the right of every elector to vote under the Special Voting Rules as of the issue of the writs (section 232), the obligation of the returning officer to sign and issue a notice of election within four days after the issue of the writs (section 62), the registration of third parties as of the issue of the writs (section 353), in addition to the desire of many candidates that their nomination be confirmed as soon as possible after the beginning of the election period. Many of these activities require significant preparations prior to the election by a large number of Elections Canada employees, and it would be difficult, if not impossible, to meet all these deadlines in the context of a strike affecting a large part of the agency's personnel.

Possible solutions

To mitigate the risks and difficulties described above, the only solution seems to be a legislative amendment that would prevent unionized employees from taking part in a strike so that Elections Canada can rely on its employees to fulfill its principal mandate of being prepared at all times to conduct an election.¹³⁸ Various mechanisms could be used to achieve that goal:

• It could be provided that, despite the definition of "essential services" contained in the Public Service Labour Relations Act, the preparation and conduct of elections constitute services essential for the health and safety of the public. Such an exception might, however, undermine the jurisprudence established by the Public Service Labour Relations Board. The effect of such an amendment might be more controlled if it were included in the Canada Elections Act rather than in the Public Service Labour Relations Act.
• Section 59 of the Public Service Labour Relations Act provides for the exclusion of positions from a bargaining unit. Employees in excluded positions are not part of the bargaining unit. Their working conditions are nevertheless the same as those of employees with the same classification who are governed by a collective agreement. The positions occupied by the employees of the Office of the Chief Electoral Officer could be added to the list set out in section 59.
• Section 196 of the Public Service Labour Relations Act sets out circumstances in which public servants cannot participate in a strike. A paragraph could be added, referring to public servants employed by the Office of the Chief Electoral Officer. In such a case, the employees would remain members of the bargaining unit, with the associated privileges and obligations, but could not participate in a work stoppage. This solution is perhaps most in keeping with the intent of the Public Service Labour Relations Act.
• These exceptions could be added to the Canada Elections Act rather than to the Public Service Labour Relations Act.

Finally, it is worth noting that, in all provincial and territorial jurisdictions in Canada, the employees of electoral administrations are excluded either from the public service or from bargaining units, thus preventing them from participating in a strike.

The most advantageous solution for Elections Canada and its unionized employees would undoubtedly be to prohibit only their right to strike. They would nevertheless remain members of bargaining units, with all other associated advantages and obligations.

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III.7 Field Liaison Officers

The position of field liaison officer, whose incumbent would be appointed on merit by the Chief Electoral Officer, should be defined as an election officer. The Chief Electoral Officer would have the authority to revoke a field liaison officer's appointment if he has valid grounds to do so. This recommendation would enshrine in the Act a trial program carried out over the past three general elections with very successful results. Elections Canada, and by extension all participants in the electoral process, would be better served.

The field liaison officer position has existed since 2003, and all incumbents of that position play an important role in the conduct of elections. However, the position is not included in the list of election officers in section 22 of the Canada Elections Act, and so field liaison officers are hired under personal service contracts. This arrangement, however, imposes limitations on their relations with Elections Canada that should be remedied.

Analysis and discussion

In the Report of the Chief Electoral Officer of Canada on the 38th General Election Held on June 28, 2004, it was reported that a new element had been added to the management framework for that election. Elections Canada had retained the services of field liaison officers to:

• keep the Office of the Chief Electoral Officer informed of the conduct of the election at the local level and provide a qualitative assessment to complement the statistical feedback transmitted daily by returning officers
• provide returning officers with functional leadership
• enhance the quality and timeliness of the performance of key duties within each electoral district of their region
• identify problems at the local level and help returning officers resolve them
• act as a media representative when required¹³⁹

The 24 initial field liaison officers were retained as consultants and were recruited through a competitive process from within the returning officer and assistant returning officer community. They were experienced election specialists who had worked in at least two general electoral events at the federal or provincial level, in a management position.

The program was found to be very successful and, after the 2004 general election, was expanded over time. It now includes 31 field liaison officers, 27 of whom are responsible for providing support to a given geographic area, each of which includes no more than 14 electoral districts. The other four field liaison officers (one for each region of the country, consisting of the West, Ontario, Quebec and the Atlantic) provide backup support to their colleagues and are able to step in to act as a replacement in their respective regions. As noted in the Report of the Chief Electoral Officer of Canada on the 40th General Election of October 14, 2008, "As in past elections, the field liaison officers proved to be an important asset."¹⁴⁰

To this day, field liaison officers are consultants retained on contract with Elections Canada. There has been relatively little turnover in their membership over time, and the program has remained quite stable. Nonetheless, the fact that these individuals are retained on contract presents some challenges that need to be addressed.

Since they may provide Elections Canada with services over long periods of time, the agency must always be vigilant to ensure in practice that no employer-employee relationship is inadvertently created. These individuals are not employed under the Public Service Employment Act, nor should they be, considering the unpredictability of the work schedule and the fact that they are largely autonomous with respect to their day-to-day activities. Nevertheless, if an employer-employee relationship were inadvertently created, it would be a violation of that Act.¹⁴¹

It is recommended that Part 3 of the Canada Elections Act (which deals with election officers) be amended to create the position of field liaison officer, appointed on merit by the Chief Electoral Officer. Field liaison officers would provide local support to the returning officers and their staff in their assigned geographic areas. In addition, they would act as an intermediary between these individuals and the Office of the Chief Electoral Officer in order to improve the effectiveness of the electoral process. Finally, at the request of the Chief Electoral Officer, they would take part in the appointment process for returning officers set out in subsections 24(1) and (1.1).

It is recommended that field liaison officers be included as election officers under subsection 22(1) of the Act and that the Federal Elections Fees Tariff provide for their remuneration and reimbursable expenses, as it does for those of other election officers. The Chief Electoral Officer should be able to remove a field liaison officer for cause, using a fair and appropriate process.¹⁴²

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III.8 Temporary Suspension of a Returning Officer

Since December 2006, the Chief Electoral Officer is responsible for the appointment and removal of returning officers. In recent years, we have seen that the current system is not well adapted to deal with a situation in which a returning officer cannot carry out his or her duties, before an election is called or during the election period itself, for reasons other than absence or incapacity. The procedural fairness required to remove a returning officer necessitates a process that cannot take place in the context of an election.¹⁴³ To protect the integrity of the electoral process while maintaining the procedural fairness required for a removal, it is necessary to provide a mechanism for temporary suspension.

Analysis and discussion

The Canada Elections Act provides that an assistant returning officer takes over from the returning officer on an acting basis when the latter is absent or unable to act or when the position is vacant.¹⁴⁴

The measure does not, however, appear to present a clear basis upon which to temporarily and immediately remove a returning officer, on the grounds of partisanship or poor performance, even when the returning officer's actions are threatening the integrity of the electoral process.

Procedural fairness requires that returning officers at risk of removal be given an opportunity to respond to allegations and make their case. However, given the central role the returning officer plays in delivering an election, if a serious situation arises, the continuation of inappropriate behaviour while the removal process is unfolding could threaten the integrity of the election.

What is required, therefore, is the capacity to suspend returning officers when their behaviour may threaten the integrity of the election process.¹⁴⁵

The suspension should only be temporary. It should cover the election period (and, if applicable, the period during which tasks to prepare for an election must be performed) as well as the 120 days following the end of the election period, during which time the returning officer continues to have responsibilities in relation to the election. The Chief Electoral Officer could end the suspension at an earlier date if he considers it appropriate to do so. If, at the end of the 120 days following the end of the election period, a process that could lead to the removal of the returning officer has commenced under subsection 24(1.1) of the Act, the suspension will remain in force until the end of that process.

A suspended returning officer would be replaced on an interim basis by the assistant returning officer unless the Chief Electoral Officer believes that the assistant returning officer is also unable, for any reason, to perform the duties of the returning officer (for example, if both are displaying political partisanship). In such circumstances, the Chief Electoral Officer should have the power to designate a temporary replacement along the lines of the existing subsection 28(3.1), which provides for the possibility that both the returning officer and the assistant returning officer are absent or unable to act.

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¹⁰³As well as the Dominion Elections Act before it.

¹⁰⁴ Section 16 of the Act reads as follows:
¹⁰⁵ The current equivalent provisions are found in section 9 of the Department of Public Works and Government Services Act.

¹⁰⁶ For example, last summer, in anticipation of an epidemic due to the A-H1N1 virus, the Office of the Chief Electoral Officer asked the Department to provide its services to obtain a large quantity of antiseptic hand liquid for each polling station that would be open during the by-elections that had been scheduled for the fall. The Department turned down that request, however, as it was unable to conduct that supply activity for the Office within the deadlines we had to meet.

¹⁰⁷ Bill C-43 received royal assent on June 29, 2005. See sections 120 to 125, S.C. 2005, c. 30.

¹⁰⁸ S.C. 1997, c. 6, s. 16.

¹⁰⁹ S.C. 1999, c. 17, s. 66.

¹¹⁰ S.C. 2000, c. 6, s. 28.

¹¹¹ S.C. 1998, c. 31, s. 9.

¹¹² Report of the Auditor General of Canada, November 2005, Chapter 6 – Elections Canada – Administering the Federal Electoral Process, recommendation 6.41.

¹¹³ This is similar to the authority provided to the Minister of Public Works under sections 16 and 17 of the Department of Public Works and Government Services Act.

¹¹⁴ In 1942 and 1992.

¹¹⁵ Standing Committee on Foreign Affairs and International Development, Advancing Canada's Role in International Support for Democratic Development, July 2007, p. 80.

¹¹⁶ CIDA is often called upon to finance the electoral assistance projects in which Elections Canada participates.

¹¹⁷ See, for instance, Office of the Chief Electoral Officer: Performance Report for the period ending March 31, 2008, in which the agency reports on activities carried out in support of its International Research and Co-operation program, which involves researching and monitoring international best practices and innovations in election administration, as well as providing training and coordinating information exchanges with similar agencies in other countries. See also Office of the Chief Electoral Officer: Performance Report for the period ending March 31, 2007, in which the agency reports on its international assistance work in Haiti.

¹¹⁸ Commonwealth Electoral Act, 1918, par. 7(1)(fa).

¹¹⁹ Electoral Commission Act of 1996, c. 2, s. 5.

¹²⁰ Political Parties, Elections and Referendums Act 2000, partie 1, paragraphe 10(1).

¹²¹ See www.ife.org.mx

¹²² A separate recommendation has been made in connection with electronic voter registration. See recommendation I.10.

¹²³ [2002] 3 S.C.R. 519.

¹²⁴ Completing the Cycle of Electoral Reforms, recommendation 1.15, p. 35.

¹²⁵ Improving the Integrity of the Electoral Process: Recommendations for Legislative Change, June 2006, p. 10.

¹²⁶ See Government Response to the Thirteenth Report of the Standing Committee on Procedure and House Affairs, "Improving the Integrity of the Electoral Process."

¹²⁷ The Referendum Act makes reference to the Canada Elections Act with respect to participation rights. Although the latter statute excludes the participation of prisoners serving a sentence of two years or more, that exclusion is inoperative in an electoral context, as it was ruled in Sauvé that prisoners' participation in a federal election is a protected constitutional right. However, in another case, the Supreme Court ruled that participation in a referendum is not a protected constitutional right (Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995). When applied in a referendum context, the provision of the Canada Elections Act excluding the participation of prisoners in federal institutions therefore continues to be in effect, and the Chief Electoral Officer cannot use his adaptation power to override it.

¹²⁸ See Office of the Chief Electoral Officer, 2009–2010 Estimates, Part III – Report on Plans and Priorities, p. 7.

¹²⁹ See Strengthening the Foundation: Annex to the Report of the Chief Electoral Officer of Canada on the 35th General Election, p. 67; Modernizing the Electoral Process: Recommendations from the Chief Electoral Officer of Canada following the 37th General Election, p. 120; Completing the Cycle of Electoral Reforms: Recommendations from the Chief Electoral Officer of Canada on the 38th General Election, p. 25.

¹³⁰ Treasury Board v. Professional Institute of the Public Service of Canada, 2009 PSLRB 120.

¹³¹ Ibid., par. 17 and following; see also Completing the Cycle of Electoral Reforms, op. cit., p. 26.

¹³² Ibid., par. 9.

¹³³ Completing the Cycle of Electoral Reforms, op. cit., p. 25.

¹³⁴ PSLRA, s. 4, 119 and following.

¹³⁵ Treasury Board v. Professional Institute of the Public Service of Canada, op. cit.

¹³⁶ Ibid., par. 209.

¹³⁷ Ibid., par. 213.

¹³⁸ The Public Service Labour Relations Act prohibits public servants that belong to a bargaining unit whose process for resolution of a dispute is arbitration from participating in a strike (see paragraph 196(e)). For that rule to apply to all Elections Canada employees, each group represented within Elections Canada would probably have to decide to withdraw from its current bargaining unit and form one or more new bargaining units comprising only Elections Canada employees. That approach does not seem feasible.

¹³⁹ Report of the Chief Electoral Officer on the 38th General Election Held on June 28, 2004, p. 33.

¹⁴⁰ Report of the Chief Electoral Officer of Canada on the 40th General Election of October 14, 2008, p. 16.

¹⁴¹ It should be noted that the Public Service Commission has been approached to see whether it would consider exercising its power under the Public Service Employment Act to exclude field liaison officers from the operation of any or all of that Act's provisions. The Commission has indicated that it is not prepared to do so.

¹⁴² The process for removal would be adapted to the particular circumstances of this type of election officer..

¹⁴³ Subsection 24(7) of the Act sets out the reasons for which a returning officer may be removed by the Chief Electoral Officer, and subsection 24(1.1) requires that a fair removal procedure be established..

¹⁴⁴ Subsection 28(3). In addition, if both the returning officer and the assistant returning officer are absent or unable to act during an election period, the Chief Electoral Officer appoints a replacement for that election (ss. 28(3.1)).

¹⁴⁵ Note that several provinces and territories have similar provisions. See Alberta's Election Act, R.S.A. 2000, c. E‑1; Nova Scotia's Elections Act, R.S.N.S. 1989, c. 140; Saskatchewan's Election Act, 1996, S.S. 1996, c. E-6.01; and Yukon's Elections Act, R.S.Y. 2002, c. 63.

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