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Modernizing the Electoral Process – Recommendations from the Chief Electoral Officer of Canada following the 37th general election

Part 1: Providing a More Accessible and Efficient Electoral Process

The elector must, before all else, be the central focus of a successful electoral system. The system must be designed to remove as much as possible obstacles to the ability of the elector to cast his or her vote.

Part I of this report contains recommendations which are intended, in chapter 1 to improve the ability of the elector to ensure that he or she is properly registered to be able to vote, and, in Chapter 2, to address issues respecting the ballot.

Chapter 1: Ensuring that Every Elector Is Registered

The following recommendations respecting the ability of electors to register with and update either the National Register of Electors or the relevant list of electors, are based on the belief that the administrative processes should be structured as much as possible in a way that best serves the electorate, allowing them to exercise their rights without unduly prejudicing the efficiency and reliability of the process.

In order to be able to exercise the right to vote, an eligible elector must be on the list of electors for his or her electoral district. In the Canadian system, the mechanism for identifying electors and the electoral district in which they can vote is the list of electors, which is newly created for each election in each electoral district. The list of electors is created from information maintained in the electronic database constituting the National Register of Electors and from revisions made by electors during the election period.2

Elections Canada is currently monitoring Internet-based voter registration (and voting) initiatives around the world, and assessing the feasibility of implementing such a system for Canadian federal elections. Ideally, any Internet-based voter registration system would allow electors to both verify and change their registration status on-line.

Elections Canada's post-event surveys conducted after the November 2000 general election revealed support for on-line registration. When asked to think ahead three or four years, 70% of electors indicated that they would like to register to vote on-line, if technology allows. This support increases when security concerns are removed. In addition, other stakeholders such as aboriginal electors, special needs electors and the academic community, indicated strong support for on-line voter registration.

The recommendations that follow are aimed principally at reducing and simplifying the administrative burden, and at increasing the flexibility of the process for registering with the Register or on a list of electors. These measures will not compromise the integrity or reliability of those processes.3

In addition to those recommendations, one other recommendation is aimed at increasing confidence in the electoral process by providing deputy returning officers with the authority, in cases of reasonable doubt, to verify eligibility of a potential elector, through the provision of an affidavit or declaration of eligibility from that elector. This will complement the deputy returning officer's current authority to verify the identity of a potential elector on election day.

Background on the National Register of Electors and the Lists of Electors

Prior to 1997, the information needed to create lists of electors for federal elections was gathered through a resource-intensive system of door to door enumeration. Today, lists of electors for each electoral district are prepared for each election from information stored in the electronic database known as the National Register of Electors. While lists are specific to each election and to each electoral district, the Register is an on-going national collection of elector information managed by the Chief Electoral Officer. The Register is regularly updated and revised.4

Subject to the exception in s. 48(3) of the Act regarding electors whose names appear on lists of electors established under provincial law, an elector cannot be added to the Register without his or her consent. However, once an elector is registered, the information respecting that elector is continually updated and revised. (An elector can also request his or her removal from the Register.) This revised information comes from a number of sources specified in the Act: from electors themselves; from federal departments or bodies that electors have expressly authorized to give their information to the Chief Electoral Officer; from information held under an Act of a provincial legislature, as set out in schedule 2 of the Act (generally statutes respecting elections, vital statistics and motor vehicles), and from any other source listed in schedule 2.

When an election is called, the Chief Electoral Officer uses information from the National Register of Electors to create preliminary lists of electors for the use of returning officers in each electoral district. During the election period, it is these lists of electors that are the focal point of the registration effort. The lists are of vital importance, since an elector who is not on the list of electors for his or her electoral district cannot vote (s. 6, Canada Elections Act). The lists are used to identify a person as an eligible elector in a particular electoral district, to provide electors with information about the electoral process and to facilitate the elector's right to vote.5

Notwithstanding the ongoing collection of information in the Register that takes place between elections, there will likely be instances where an eligible elector may not appear on the relevant lists of electors, perhaps because a change in address or other information may not have been communicated to the Register, or because the Register may not have been advised of new electors acquiring the right to vote. The names of deceased electors may still appear on the list if the Register has not yet been advised of their deaths. There are inevitable time lags that occur between events occurring in the real world and when these events are recorded on administrative databases used to update the Register.6

As with any permanent register system, recent changes to elector information may not be reflected in the lists of electors produced from the Register. For this reason, the Actprovides for a revision period during which the returning officer for each electoral district can deal with applications by electors for additions to, corrections to, or deletions from the lists of electors for that district. This revision period does not end until 6 p.m. (local time) on the sixth day before election day. For a part of this period, electors may also challenge the eligibility of other electors' names on a list.

Following the close of the revision period, official lists of electors are then created for use at the polling stations in each electoral district on election day. (As the advance polls are held before the end of the revision period, "revised lists" are created by the returning officers for use in the advance polls; these lists reflect changes made prior to the advance polls.)

An elector whose name still does not appear on the official lists of electors on election day still has one last chance to register. On election day, the elector can register either with a deputy returning officer authorized to receive registrations at the polling station, or with a registration officer at a registration desk established by the returning officer. For the purposes of s. 6 of the Act, electors who register on election day are deemed to be on the list of electors (as per s. 161(5)).7

After the election, the Chief Electoral Officer creates final lists of electors for each district. The final lists include information from the official lists and from election day registration activities. The changes that were made to the lists of electors during the election period, are fed back into the Register, which is then updated.

Recommendations Respecting the Registration Process

1.1.1 Signed Certification of Eligibility for Registration on National Register of Electors

A person who wishes to be registered on the National Register of Electors may request the Chief Electoral Officer to register the person under s. 49 of the Act. In addition to providing or confirming the necessary identification information, an elector must provide the Chief Electoral Officer with a signed certification that he or she is qualified as an elector. The Chief Electoral Officer must be satisfied of the identity of a person. The certification must be signed by the elector in question. This requirement for a signed certification reduces the means of communications open to an elector to request registration.

Nevertheless, because certification serves as a form of written personal assurance from the elector as to his or her eligibility, it contributes to the reliability of the resulting record.

Eligibility, however, can be determined on the basis of evidence other than a written certification personally signed by the relevant elector. For example, information respecting an elector who has been previously verified by another federal department (such as Citizenship and Immigration in the case of individuals who have recently acquired citizenship), may come to the Register. In that case, the personally signed certification adds little to the existing degree of reliability of the information.

The Act already recognizes one instance where information is sufficiently comprehensive and reliable as to not require personally signed certification – that being information coming to the Register via inclusion of the elector on a provincial list of electors.

Moreover, the Act does not uniformly require personally signed certification as a prerequisite to registration. For example, an elector who ultimately gets into the National Register of Electors by registering to vote with the returning officer during an election, is not required by the Act to provide signed certification. An elector who registers another elector on the list under s. 101(1)(b), is also not required by the Act to produce a certificate of eligibility personally signed by the elector being added.

Furthermore, it does not appear that, under s. 48(3), the Chief Electoral Officer is restricted to determining an elector's eligibility only on the basis of a signed certification when the elector requests registration following an enquiry from the Chief Electoral Officer.

In each of those cases, under the Act, the responsible officer is required to be satisfied that the person in question is an elector, but that assurance could be based on any sufficiently reliable evidence. (The CEO has issued instructions to returning officers to seek signed certifications in those cases, either from the elector himself or herself or the person requesting the change on behalf of the elector.)

Futhermore, there was no requirement for a personally signed certification under the earlier enumeration system. There too, the responsible officials could determine eligibility on the basis of any form of sufficient evidence.

The above is not to question the requirement for reliable information in establishing eligibility to register. The issue is the form that the evidence of eligibility takes. At the moment, the Act imposes a single form of acceptable proof – the signed certification – thus imposing a degree of rigidity that does not admit for other, equally reliable forms of evidence.

It is also interesting to note that while the Act imposes this rigid requirement for the form in which information must come, there is no corollary offence provision aimed at maintaining the integrity of that specific form. There is no express offence provision respecting the giving of a false certification (as there is in s. 549(3) for the taking of a false oath). The offence is the giving of false information under s. 480 of the Act, which would be equally applicable regardless of the form in which the false information was given. If a person voted without being eligible, the offence would be for voting, not for providing a false certificate. Thus, the enforcement provisions of the Actindicate that it is the substance of the information provided, not the specific form in which it comes, that is the central point of the provision.

A corollary restriction respecting registration also exists in s. 48(2), which only allows one way for an elector who wishes to be registered, to confirm registration information provided by the alternative sources of information listed in s. 48. The confirmation must be done in writing. This restriction constitutes an administrative burden and makes it more difficult for electors to register, in much the same way as the requirement for a personally signed certification does. Furthermore, the requirement for confirmation in writing in s. 48(2) is inconsistent with s. 50, which allows electors, once registered, to request changes to their information by several means in addition to writing.

Recommendation: A certification of eligibility, signed by the elector, should no longer be a necessity for being added to the Register. This would recognize the facts that:

This change would maximize the ability of electors to register, including the ability to register on-line where alternative evidence of sufficient reliability was available.8

Similarly, the recommendation is made to drop the requirement in s. 48(2) of the Act that an elector wishing to register must confirm in writing information provided to the Chief Electoral Officer from sources other than those set out in s. 46. The provision should allow alternative methods of confirmation.9

It should be made clear that this recommendation is not to eliminate the need for evidence of eligibility, signed certification in all circumstances, or confirmation in writing in all circumstances. The recommendation is made to permit the registration process to become more flexible by allowing proof of eligibility, or proof of confirmation, to be established by a range of sufficiently reliable evidence. This will facilitate elector registration without compromising the reliability of their information.

1.1.2 Revision of Register on Initiative of the Chief Electoral Officer

Currently, the Act specifies the sources of information available to the Chief Electoral Officer to maintain the Register. These sources generally refer to databases maintained by bodies other than Elections Canada, such as provincial electoral agencies and motor vehicle registrars.

Elections Canada, however, already maintains a local presence throughout the various electoral districts in the person of the returning officer. Returning officers already play an important role, during elections, in the correction and updating of the lists of electors (which subsequently feeds into and updates the Register). If the Chief Electoral Officer was provided with the express authority to conduct local initiatives using returning officers to verify, correct and update the Register between electoral events, the ability of Elections Canada to maintain the accuracy of the Register would be substantially increased.

Under the current provisions of the Act, the Chief Electoral Officer could add returning officers as a reliable source of information under s. 46(1)(b)(ii) by adding them to Schedule 2. However, while that would be a step forward, it might leave questions as to the authority of returning officers to actually undertake initiatives, in addition to simply passing on information that came into their hands through other means. Also, it would only provide one method by which Elections Canada could conduct local initiatives outside the electoral period. It would not authorize the Chief Electoral Officer to undertake other forms of inquiry.10

Recommendation: In order to increase the capacity of the Chief Electoral Officer to maintain the integrity of the Register, the Canada Elections Act should be amended to authorize the Chief Electoral Officer to undertake initiatives to verify, correct and update the Register and to authorize returning officers, and others, to conduct such initiatives outside of electoral events, when requested by the Chief Electoral Officer.

Recommendations Respecting the Lists of Electors

1.1.3 Notice of Confirmation of Registration (Voter Information Card)

There is undue rigidity in the current legislative requirements respecting notices of confirmation of registration.

The Act requires that each returning officer, as soon as possible after the issue of the writ, but not later than the 24th day before election day, send a notice of confirmation of registration to each elector whose name appears on a preliminary list. The notice and time limit serves to assure an elector as soon as possible that he or she is on a list. It also allows an elector who does not receive a notice within that period to know that he or she is not on the list. It allows sufficient time to register or make necessary corrections during the revision period.11

Electors who register during the election period are sent a voter confirmation card by day 5 of the election period.

In addition to confirmation of an elector's registered status, the notice is also required by the Act to set out the necessary voting information, which the elector will need to know in order to vote on election day. This includes the address of the elector's advance and the ordinary polling stations, as well as the dates and hours for voting.

The current statutory requirement to have the notices of confirmation of registration both inform an elector of his or her registered status and provide the required voting information caused difficulties in the 37th general election.

In a number of ridings, problems were encountered in meeting the statutory deadline. As a result, mailing of the notices was either delayed or the notices went out with unconfirmed polling station information. The latter necessitated subsequent mailings of revised notices when the polling station originally selected was no longer available.12

Secondly, in order to ensure delivery of local voting information to the elector currently living at a given address, notices of confirmation of registration had to be addressed to the registered elector or occupant to meet the Canada Post requirement for avoiding automatic forwarding of the notice to an elector who had moved. Even though instructions were clearly stated on the voter information card, this gave rise to confusion in a number of cases where receipt of the notice addressed in this way led new occupants to believe they were on the correct list of electors, when they were not.13

It is important that the existing time limit be retained for providing confirmation of registration. The existing time frame ensures that electors have sufficient notice to take advantage of the revision period for updating or correcting their information on the preliminary lists. There is more leeway available for the provision of voting information (dates of advance polls, voting hours, polling station locations, etc.).

During the 37th general election, it was the returning officers, using address labels provided by Elections Canada, who carried out the task of sending notices of confirmation of registration, as required under the Act. With the technology available today, it may no longer be necessary for the returning officer to do so.

There may still be a practical reason for the returning officers to notify electors of their specific voting location and hours, since the returning officers are responsible for confirming the location of polling stations. However, from the perspective of the elector, what is important is that the correct information is received at the right time.

The experience of the 37th general election has demonstrated that while it is important for the Act to specify what information should be sent to electors and when it should be sent, more flexibility is needed respecting who sends the information and the manner in which it is sent.

Recommendation: The current legislative scheme for notices of confirmation of registration should be revised to include more flexibility as to who is to provide electors with the required notices and how that notification is to be done. However, the Act should continue to specify what information is to be provided and when.

This can be accomplished by amending s. 95 of the Act to provide that the Chief Electoral Officer shall cause, as soon as possible after the issue of a writ, but not later than the 24th day before election day, a notice of confirmation of registration to be sent to every elector whose name appears on a preliminary list of electors (subject to the existing exceptions).

The Chief Electoral Officer should also be directed to have sent, to every household or registered elector, the voting information necessary for registered electors in that household to vote (as currently set out in s. 95(2). It should be required that this information be sent as soon as practical, and in any event, not later than a day keyed to the advance polls. In this way, the Chief Electoral Officer can decide who is responsible for sending out the required information to best suit the administrative and technological resources and the circumstances of the day. However, the Act will continue to direct exactly what information is to be sent and the timelines for providing that information.

Whether the above information is sent out in one or more notices should also be left to the discretion of the Chief Electoral Officer, who can adjust the practice to the realities of the circumstances. (A different practice may be adopted for by-elections than for general elections, for example.) The form of those notices should also be established by the Chief Electoral Officer (which reflects the existing legislative direction).

As a corollary, the Act should continue to provide that any elector registered during the election period receives both notice of confirmation of registration and voting information in the manner established by the Chief Electoral Officer.

1.1.4 Allowing Returning Officers to Update Lists on the Basis of Information from the Chief Electoral Officer

Under the current system, once an election is called, the focus of changes to the lists of electors is on initiatives undertaken by the elector. Section 101 provides for a request by an elector to be added to a list of electors. Section 101, however, does not address the updating of a list of electors on the basis of information that comes to the Register after the preliminary lists of electors are created.

In the 37th general election substantial numbers of address changes, and notifications of deaths, came to the Register through statutorily authorized routes just before and after the writs were issued. Had this information come to the Register earlier, it would have been incorporated and the revised information reflected in the preparation of the preliminary lists. Because of the timing, a significant number of changes would need to have been made by electors themselves – an undue, but avoidable administrative burden. A decision was made to provide the new information from the Register to returning officers who made 481 400 revisions to the lists. This is an important method to update the lists which should be made express in the Act.

Recommendation: It is recommended that s. 101 of the Act be amended to expressly provide that returning officers can update lists of electors by adding or deleting electors, or making other changes on the basis of information provided by the Chief Electoral Officer.

1.1.5 Inter-District Changes of Address

When an elector moves from one electoral district to another and the Register has not been updated to reflect a change of address prior to the calling of an election, that elector may face unnecessary administrative hurdles in registering that change on the list of electors after an election is called.14

Currently, s. 101(6) of the Act provides that an elector who changes his or her address within the same electoral district may contact a returning officer by phone or by any other means, and, on providing satisfactory proof of identity and residence, apply to have the relevant corrections made to the appropriate lists of electors. Such changes of address can also be done by one elector on behalf of all electors living at the same residential address.

This can be done only where the elector changes his or her address within the same electoral district. A registered elector whose change of address takes him or her into a different electoral district cannot correct the relevant list as easily. In order to be added to the list of the electoral district into which the elector has moved, the elector must apply to the returning officer. This requires the completion of the prescribed registration form under s. 101 (or one of the alternative registration processes under that section), a more demanding and onerous administrative process.

It is only because of historic technological limitations that the ability of a registered elector to record a change in his or her address on the list is restricted in this way.

Technological and software advancements, however, have now made it possible for returning officers to verify that an elector is already registered on a list of electors in some other electoral district.

Since the returning officer can now verify that an elector is already on a list of electors, there is no longer any need for the returning officer to independently verify an elector's eligibility to register. The verifiable registration of the elector on an existing list of electors means that the returning officer could treat this kind of address change in the same way as a change of address within the same electoral district is treated.

Recommendation: Subsection 101(6) should be amended to extend the ability of returning officers to record changes of address in cases where a registered elector moves from a different electoral district.

1.1.6 Proof of Identity on Requested Change of Address on List

Section 101 of the Act also authorizes a returning officer (or assistant returning officer) to add the name of any elector to a preliminary list of electors if, among other circumstances, another elector who lives at the same residence completes the prescribed registration form, establishes that the elector should be included on the list and provides satisfactory proof of identity for the elector whose address is to be changed.

The requirement for proof of identify is logical and not onerous when an application is being made at the office of the returning officer or somewhere other than at the residence of the electors in question. In those instances, it is likely that the necessary proof would have been secured from the subject elector.

However, where a request is made at the actual residence of the electors in question, the requirement that the elector requesting the change have proof of identity becomes more onerous. In those instances, one or more of the electors may not be home. They would generally carry with them their proofs of identity. The elector who is found at home is not likely to have the documentation to prove the identity of all of the other electors who also reside there.

In such cases, the need for proof of identity is much reduced. The fact that the elector is found at his or her residence (and, implicitly, can be required to provide proof of his or her own identity if the need arises) reduces substantially the likelihood of fraud. For a similar reason, the corollary requirement in section 101(1)(a) that an elector requesting to be added to the list must provide proof of his own identity, should be dropped as an automatic requirement when the elector is found at his or her residence and makes the request there. Finding the elector at his or her own residence should be sufficient evidence of identity in the absence of some circumstance that might give rise to concern.

Proof of identity was not required under the earlier enumeration system. Under that system, as long as the enumerators were satisfied of the propriety of doing so, they were authorized to register electors on the word of one elector regarding the other electors resident in the same location, without requiring the "at home" elector to provide proof of identify for the electors who were not available at that time.

Recommendation: It is recommended that s. 101(1)(a) and (b) be amended to provide that where a request to add an elector's name to the preliminary lists of electors is made by that elector, or by another elector who lives at the same residence, proof of identity would not be required where the request is made to an election officer at the residence of the elector. The elector requesting the change will still be required to complete the prescribed registration form and establish that the elector in question may be included on the list.

1.1.7 Authority of Deputy Returning Officer to Verify Eligibility

Under the current Act, a deputy returning officer, poll clerk, candidate or candidate's representative who has doubts concerning the identity or right of a person intending to vote at a polling station, may request that the person show satisfactory proof of identity and residence (s. 144(1)). Instead of showing satisfactory proof of identity, the person is authorized to take the prescribed oath.

Where some question arises at the poll as to the eligibility (citizenship and age) of a person who is on the list of electors, a deputy returning officer has no authority to require any form of proof of eligibility with respect to questions of identity. The individual's presence on the list of electors is deemed, under the current Act, to be sufficient proof of eligibility.15

There would be little resulting burden on individual electors or on the system if, in cases where reasonable questions of eligibility arise, potential electors were required to verify their eligibility to vote by providing a written affidavit or solemn declaration of their eligibility. The requirement for the oath or affirmation to be in writing would be to ensure a record. The current enforcement provisions respecting oaths would be available respecting these oaths or declarations.

Recommendation: It is recommended that s. 144 be amended to include the authority to require a written affidavit or solemn affirmation of eligibility by a potential elector where reasonable doubt is raised concerning that person's eligibility by a deputy returning officer, poll clerk, candidate or candidate's representative.

Chapter 2: Ensuring that Every Vote Counts

1.2.1 Same Names on Ballot

In the 37th general election, two candidates in one electoral district filed nomination papers with identical names. This created some confusion in the preparation of the ballot because, while s. 117 of the Canada Elections Act directs that names are to appear on the ballot alphabetically, the Act fails to make allowance for a situation where two candidates with no political affiliation have identical names. Listing the candidates in alphabetical order according to party name does not appear to be an option as the names of parties may differ in English and French. Furthermore, in Quebec, political party names appear in French first, before the English version, and in other provinces, the English version precedes the French version.

The statute currently provides a resolution mechanism respecting identical names for independent candidates: the address or occupation of the candidates is to be listed and the names ordered accordingly. This method serves two purposes. It not only provides a mechanism for determining order of appearance, but it also serves to distinguish the otherwise identical candidates.

The Act does not address the issue of identical names for party-affiliated candidates. In the past, the informal practice has been to assign order on the ballot by the simple expedience of the luck of the draw.16

Recommendation: Section 117 of the Act should be amended to reflect the practice adopted by returning officers in the past, by providing that where the names of two or more candidates are identical, the order of their appearance on the ballot is to be determined by the luck of the draw. This would apply both to candidates who are independent and to candidates who are endorsed by parties.

1.2.2 Option to Decline Ballot

There is a growing perception among some of Canada's electorate that there should be a way in which an elector can register his or her dissatisfaction with the political process by declining his or her ballot. The Canada Elections Act currently does not provide any authority for that to be done.17

In order to remain vital and meaningful, the vote must remain responsive to the needs of all Canadians. The time may have come to allow an elector a formal means of expressing dissatisfaction with the political system in a manner that is not only peaceful, but is meaningful as well. Such a change at the federal level would mirror similar innovations that have taken place in a number of provinces: Ontario, Alberta, Manitoba, Nova Scotia and the Yukon – all of which have provisions in their electoral statutes for ballots to be declined and of which Manitoba's may serve as a model.18

Recommendation: The Canada Elections Act should be amended to provide for the means for a ballot to be declined, recorded and reported as such in the official ballot results and which respects the principle of the secrecy of the vote.

1.2.3 Deadline to Obtain Transfer Certificate

Every effort is made to ensure that all polling stations provide level access. However, the limited time frames of an election and questions of space availability, sometimes result in less than optimal locations having to serve as polling stations.19

Section 159 of the Act provides the means whereby an elector with a physical disability who cannot vote without difficulty in his or her polling division, may vote at another polling station where level access is provided. In order to do so, the elector must request a transfer certificate from the returning officer for the elector's electoral district before 10:00 p.m. of the Friday immediately before election day. The elector may apply either personally or through one of a number of individuals identified in the Act, acting on his or her behalf. A transfer certificate is then issued by the returning officer, which allows the elector to vote in another polling station in the same electoral district.20

The ability of s. 159 to adequately address this concern, however, is compromised by the time limit imposed by that section for making the application for the certificate. Subsection 95(3) of the Act expressly provides that the notice of confirmation of registration sent out by a returning officer must invite the elector to advise the returning officer if the elector requires level access, and that his or her polling station does not have it. Sometimes electors are not aware of the accessibility of the relevant polling station until the deadline for application has passed. Also, sometimes returning officers may be unable to verify the availability of level access (as defined by Elections Canada) at a polling site because of distance, and must rely on information obtained from landlords, which may or may not be accurate. In the past, the Chief Electoral Officer has used his authority under s. 17 of the Act to extend the time for application and issuance of the required certificate if an elector found himself or herself assigned to a polling station that did not provide level access.

The purpose of the deadline is to allow sufficient time for a copy of the certificate to be sent to the deputy returning officer for the normal polling station, for the person to whom the certificate has been issued. However, this copy does not have to be received in order for the elector to vote in the new polling division, provided he or she presents the original of the required transfer certificate in that division. The time limit is a matter of administrative convenience only.21

The value of this time limit is questionable compared to the importance of the right to vote that could be lost as a result of administrative convenience. In most cases, with modern technology, the relevant copy of the certificate can be forwarded to the deputy returning officer very quickly, or the deputy returning officer can be advised in some other fashion.

Furthermore, the imposition of the time limit is inconsistent with the practice in the Act for other forms of transfer certificates. Transfer certificates are available under s. 158 of the Act to candidates and to persons who have been appointed after the last day of the advance polls to serve as election officers for a polling station other than their own. No time limit is imposed by the Act respecting those certificates.

Recommendation: Section 159 of the Act should be amended to remove any time limit for application for a transfer certificate respecting level access. The removal of the time limit will not create an undue administrative burden, will recognize further the constitutional right of all individuals to have access to the voting process and will be consistent with the statutory practice set out in s. 158.22

1.2.4 Time Frames for Special Voting Rules

Under s. 232 of the Act, electors who wish to vote by special ballot and who are not resident in Canada may apply for a special ballot any time after the issue of the writ and before 6:00 p.m. on the sixth day before election day. Effectively, however, this right cannot truly be exercised immediately after the issue of the writ. Before an application can be made, the required forms must be available and the necessary returning office must be operational. 23

A similar difficulty was avoided with respect to the revision period. The Act expressly does not create the right to revise one's information on the list until the revision period commences on a date fixed by the Chief Electoral Officer (which date is to be as soon as possible after the issue of the writ).

Recommendation: Section 232 should be amended to provide that the period for making an application under Division 4 of Part 11 for a special ballot, commence at the date fixed by the Chief Electoral Officer. This date is to be as soon as possible after the issue of the writ.

1.2.5 Requiring Affidavit When Another Person Has Already Voted in Elector's Name

On occasion, an elector may discover at a polling station that he or she has been shown as having voted on the list of electors when he or she has not done so. Section 147 of the Act addresses this concern by providing that if a person asks for a ballot at a polling station after someone else has voted under that person's name, the person is entitled to receive a ballot and to vote, after having taken the prescribed oath and having satisfied the deputy returning officer as to their identity and entitlement to vote at the polling station.24

It is an offence to swear a false oath under the Act (s. 549), however, in the event of a prosecution, the taking of the oath would have to be proven. In order to provide for the better enforcement of the Act, it would be preferable if the person were required to swear a written affidavit or solemn declaration rather than taking the oath orally. The only extra burden upon the person in question would be a signature.

Recommendation: It is recommended that the Act be amended to allow an elector who has not voted, but who is shown on a list of electors to have voted, to vote once he or she swears a written affidavit or solemn declaration before the deputy returning officer.