Report of the Chief Electoral Officer of Canada on the 41st general election of May 2, 2011
The experience of the 41st general election points to a number of avenues that need to be further explored in order to improve our electoral framework in the areas of services to electors, services to candidates and communications. The present section examines these areas for improvement as Elections Canada goes forward. In some cases, the issues are specific and already well defined. In other cases, however, the agency will need to pursue its evaluations and analysis, as well as continue to engage parliamentarians and stakeholders.
The 2010 report entitled Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election (the Recommendations Report) noted that Canadian society is quickly evolving: it is becoming more mobile and diversified, and it is rapidly aging. Canadians have come to expect flexible services to accommodate their changing needs. Many non-voters cite inconvenience as a reason for not voting. The experience of the 41st general election confirmed that current services are too rigid to meet the changing needs and expectations of electors and that a thorough review is required.
The rigidity of the voting process is not only an inconvenience for electors, but is also expensive and, in some cases, inefficient. As Elections Canada looks to improving the range and quality of services to electors, it also needs to explore more efficient processes for conducting the vote.
Special Voting Rules
The Special Voting Rules system provides voting opportunities to electors who cannot or choose not to vote at advance polls or on election day. The number of electors who vote by special ballot has continued to increase. For military, incarcerated and international electors, special ballot voting is the only way to vote. This is also true for electors away from their electoral district during advance and regular voting, including students and workers in remote camps.
As discussed in the previous section, the Special Voting Rules pose a number of challenges to electors pertaining, among other things, to the tight election calendar and difficulties in transmitting documentary proof of identity and address.
While the Special Voting Rules need to be re-examined to address these difficulties, they also present a significant opportunity for offering electors more convenient and flexible voting options. Elections Canada already uses the special ballot to meet the needs of two categories of electors who, for practical reasons, would otherwise be unable to vote or who face very significant barriers: electors in acute care centres and electors in remote work camps. However, the use of the special ballot could be expanded to make voting more convenient. For example, returning officers could be authorized to set up special voting kiosks on campuses or in shopping malls, or allow electors to vote at any polling station on election day.
Following the 38th general election, the Chief Electoral Officer called for a "far-ranging review" of the Special Voting Rules, including an examination of how new technology could be used to facilitate special ballot processes. His call was endorsed by both the House of Commons Standing Committee on Procedure and House Affairs as well as the government. However, due to successive minority governments, this task was not undertaken. The current context may provide the opportunity for such a review.
The number of Canadians who take advantage of advance voting has continued to increase, and this trend is expected to continue in the future. While Elections Canada has increased the number of advance polls, notably in rural areas, the regime is ill-designed to provide adequate service to electors.
In the Recommendations Report, changes were suggested to allow more flexibility in the hiring of election workers for advance polls. Although this remains critical, other aspects of the regime also need to be considered. For example, providing mobile advance polls in remote areas where the number of electors or availability of workers does not allow for three days of advance polls could improve services to electors while allowing for a more efficient use of resources.
The vast majority of electors (98 percent) made use of either an ordinary poll on election day (84 percent) or an advance poll (14 percent). During the 41st general election, issues arose regarding the efficiency of the process for voters at the polls. These issues are essentially the same as those pointed out in the reports on the 40th general election:
- Lineups may occur at one polling station within a polling site while workers at another station are idle. Voters may also arrive in waves, causing information officers, poll clerks and registration officers to be busy at different times.
- The limited time available and the increasing complexity of the voting process make training election workers more challenging. At times, these circumstances may lead to high turnover rates and increase the risk of inconsistent service to electors.
- The voting process is strictly defined, and no poll official can replace another. There is no opportunity to share the workload or take on tasks other than those prescribed in the Act.
- Work on election day proceeds for 15 hours, with no designated time for lunch or breaks. This makes recruitment a challenge. At the end of that long day, workers must conduct the critical activities of counting the votes and closing the polls.
In these instances, legislative changes authorizing pilot projects would allow for testing a more effective model, similar to the one used in New Brunswick provincial elections: Workers at central polling places would not be assigned to a specific polling division. Electors would go to the polling station that has the shortest lineup, receive their ballot and vote. This is an interesting approach that would provide the flexibility to manage traffic flows at polls in a businesslike fashion. It would prevent long lineups at advance polls and would streamline training and the recruitment of election workers. A pilot project, as proposed in the Recommendations Report, would enable the Chief Electoral Officer to test the model and provide a more effective recommendation to Parliament.
A number of issues were reported in connection with the nomination process: alleged irregularities with regard to signatures on nomination papers and difficulties experienced by three candidates with the nomination process. These incidents indicate a need to review the nomination process, re-examine it with stakeholders, and assess the extent to which some of these issues are systemic as well as how they can be addressed. Some of the problems may be unavoidable consequences of the very short time frame for nominations, but there may well be room for improvement.
Apart from addressing specific incidents, a review should also consider ways to modernize and thus facilitate the nomination process for candidates. For many candidates, especially in large electoral districts, providing the necessary documents within the strict statutory timelines is a challenge. The Recommendations Report proposed allowing electronic signatures. If this change to the Canada Elections Act were made, could nominations be conducted on-line? Is the requirement to obtain signatures from 100 electors residing in the electoral district still relevant today? These are matters that should be examined by parliamentarians.
The expansion of Web-based communications technology – particularly social media such as YouTube, Facebook and Twitter – is transforming communications both outside and during elections. In this rapidly evolving context, the relevance of the existing legal framework must be reconsidered. The 41st general election showed the need for re-examination, especially of two aspects of the regime: the premature transmission of election results, prohibited under section 329 of the Canada Elections Act, and the regulation of third party election advertising.
Premature transmission of election results
With respect to the ban on the premature public transmission of election results, Elections Canada has no information to suggest that there was widespread disregard for the rule. Nevertheless, the growing use of social media puts in question not only the practical enforceability of the rule, but also its very intelligibility and usefulness in a world where the distinction between private communication and public transmission is quickly eroding. The time has come for Parliament to consider revoking the current rule.
Third party advertising on the Internet
As for the regulation of third party advertising, there is also a need to rethink the legislative framework. The distinction between advertising and non-advertising messages was relatively straightforward with television, radio and print media, but this is not the case with newer technologies. For example, humorous video clips posted on YouTube or Facebook may be considered to be commentary, programming, art or advertising. Messages shared on Twitter can be perceived as public discussion or advertisements. Even Internet sites or pages are not easily categorized. The confusion around the nature of such communications results in uncertainty and inconsistent behaviour, perceptions of illegality and a tendency to discourage participation.3
The third party regime reflects a concern for creating a level playing field between opponents with differing financial resources. The regime regulates advertising expenses, but its purpose is not to reduce the information available to electors or prevent individuals from participating in the electoral debate. Social media and the Internet are conducive to political participation by allowing a broad dissemination of messages at a very low cost. The use of new technologies can improve the federal electoral process by enhancing both equality and freedom of expression. To reduce the current uncertainty and take advantage of new technologies, Parliament may wish to consider excluding from the definition of election advertising all Internet-based communications by third parties, except perhaps communications placed for a fee by the originator on another site.
3 Section 319 of the Act provides a general definition of election advertising, followed "for greater certainty" by a list of illustrations of what the general definition is not meant to capture. One of these is "the transmission by an individual, on a non-commercial basis on what is commonly known as the Internet [...] of his or her personal political views" [paragraph 319(d)]. This approach gives rise to much confusion. The reference to an individual's "personal" political views is difficult to apply. More importantly, the very specific wording of paragraph 319(d) leads readers to treat it as an exception to the definition, as opposed to a mere illustration of what the definition does not capture. The questions above as to what other types of Internet communications do not come within the definition largely remain without a satisfactory answer.