Modernizing the Electoral Process – Recommendations from the Chief Electoral Officer of Canada following the 37th general election
Part 7: Managing the Electoral Process
An effective process requires effective machinery. The recommendations in this part address useful legislative improvements to the Office of the Chief Electoral Officer and to the administrative processes involved in running elections.
7.1 Appointment of Returning Officers
Returning officers are currently appointed by the Governor in Council under s. 24(1) of the Act. Once appointed, a returning officer may only be removed for cause. Their appointments also cease if they die, resign, cease to live in their electoral district, or if the boundaries of that district are revised under the Electoral Boundaries Readjustment Act (s. 24(4)).
The current system of appointment creates several difficulties.
Appointees are often not given enough advance information about the nature of the work expected of them.
Failure to perform or poor performance by a returning officer cannot effectively be addressed under the current system. Although the Chief Electoral Officer has the statutory authority to issue binding instructions to a returning officer (s. 16(c)), the Chief Electoral Officer has no authority to discipline or otherwise remove a returning officer for inability or failure to follow such instructions. Only the Governor in Council may remove a returning officer and appoint a replacement. However, it is not practical to expect the Governor in Council to be able to fairly and efficiently exercise such authority within the limited time frame of an election.
Returning officers are instrumental in delivering elections in their electoral district. In light of this important role, candidates have raised concerns in the past that the control of the governing party over the appointment process gives rise to perceptions of bias.
There are now six provincial and territorial jurisdictions in which returning officers are appointed by the Chief Electoral Officer (Quebec, British Columbia, Manitoba, Newfoundland, Northwest Territories, and Nunavut.) In the Yukon, all persons recommended by the Chief Electoral Officer for appointment as returning officers have subsequently been appointed by the government. This demonstrates a real recognition of the concerns raised in this and earlier reports, as well as a trend towards returning officer appointments by the Chief Electoral Officer.66
These are not minor concerns. The returning officer plays a core role in the conduct of an election. He or she is the single most important election officer in each electoral district. The effectiveness and efficiency of the electoral machinery in that district is dependent on the abilities, knowledge, operational skills and neutrality of that officer. As a result, in Strengthening the Foundation: Annex to the Report of the Chief Electoral Officer of Canada on the 35th General Election, and in the 1997 Report of the Chief Electoral Officer on the 36th General Election, the recommendation was made that returning officers be appointed by the Chief Electoral Officer on the basis of merit. That recommendation is repeated in this report with the sincere urging that remedial action will soon be taken.
Recommendation: It is recommended that provision be made for returning officers to be appointed by the Chief Electoral Officer on the basis of merit. New returning officers would be appointed for a 10-year term, be eligible for re-appointment, and could be removed by the Chief Electoral Officer in the event of incompetence or unsatisfactory performance.
7.2 The Office of Assistant Chief Electoral Officer
The current statutory concept of the office of Assistant Chief Electoral Officer remains rooted in historical anachronism and fails to reflect its actual role. As a result, not only are there important concerns respecting the independence of that office, but the holder of that office suffers a serious impairment of his or her constitutional democratic rights.
A number of important concerns flow from the current statutory provisions respecting this office.
Firstly, insofar as the Assistant Chief Electoral Officer holds no specific mandate and performs no operational role, other than what may be assigned from time to time by the Chief Electoral Officer, there appears to be no substantive reason why the Assistant Chief Electoral Officer should not have the right to vote. All other officers under the Chief Electoral Officer have that right. Any of those officers may at any time be assigned the same duties or responsibilities that could be assigned to the Assistant Chief Electoral Officer. This is an important intrusion upon the constitutional democratic rights of the holder of the office of Assistant Chief Electoral Officer, the justification for which appears dubious.
Secondly, there appears to be no pressing reason why the officers under the Chief Electoral Officer should be divided into two classes – the Assistant Chief Electoral Officer and everyone else. There are several administrative officers who perform tasks that are equally important to the operation of the electoral process. The existence of the office of Assistant Chief Electoral Officer appears to be a historical anachronism, the origin of which lies in the time when the Chief Electoral Officer had only three staff members, including the Assistant Chief Electoral Officer who was the only officer of the three.
Since its creation in 1920, the Office of the Chief Electoral Officer of Canada has expanded in mandate and in operational demands far beyond its original concept of a simple three-person office. The Chief Electoral Officer now presides over a complex, modern organization with continuing national and international obligations and extensive demands for expertise in many fields – in finance, law, geography, computer technology, and public administration. However, this evolution of the mandate and structure of the Office of the Chief Electoral Officer of Canada has not been reflected by an evolution in the statutory concept of the Assistant Chief Electoral Officer that would integrate that office into modern reality.
Lastly, insofar as the Assistant Chief Electoral Officer serves no particular statutory mandate, there appears to be no statutory purpose served by the requirement that the Assistant Chief Electoral Officer be appointed by the Governor in Council. Yet, while serving no apparent statutory purpose, that appointment process operates negatively to undermine the perceived impartiality of Elections Canada's operations. The influence of the governing party in this appointment is inconsistent with the independence and impartiality required of Elections Canada. As noted above, the appointment authority of the Governor in Council appears to be merely historical in origin rather than purposive. This last point reflects a similar recommendation made in the 1996 Strengthening the Foundation: Annex to the Report of the Chief Electoral Officer on the 35th General Election.
Recommendation: The statutory office of Assistant Chief Electoral Officer should be removed from the Act.
7.3 Appointment of Revising Agents
To assist the returning officer in the revision of the lists of electors during electoral periods, s. 32 of the Act directs that returning officers appoint such revising agents that the returning officer considers necessary for the task (subject to the approval of the Chief Electoral Officer as to the number). Under s. 33, a returning officer is required to solicit the names of suitable persons from the registered parties whose candidates finished first and second in the last election in the electoral district. If sufficient names are not provided by those parties within three days after receipt of the request, the returning officer may solicit names from other sources. The returning officer is required to appoint half of the revising agents from among persons recommended by the registered party whose candidate finished first in the last election in the electoral district, and half from among persons recommended by the registered party whose candidate finished second in that election. Because of the political nature of their appointments, these agents are required by s. 99 to work in pairs, and their decisions must be approved by the returning officer or assistant returning officer.
Unfortunately, the relevant registered parties are not always able to provide sufficient names within the required time frame. Furthermore, the time frame for consultation with the political parties creates a delay in the selection and training of revising agents. If the returning officer were able to secure revising agents without first receiving recommendations by the registered parties, the returning officer could identify and train individuals at the call of an election and begin revising the lists of electors as soon as the 33rd day before election day.
Recommendation: It is recommended that s. 33 be amended to remove the requirement for returning officers to solicit names from registered parties in the hiring of revising agents.
7.4 Appointment of Deputy Returning Officers and Poll Clerks
Under ss. 34 and 35 of the Act, deputy returning officers and poll clerks are appointed from lists of suitable persons provided by the candidates of the registered parties that finished first (the deputy returning officer) and second (the poll clerk) in that electoral district in the last election. If the candidates have not made their recommendations or have not recommended a sufficient number of suitable persons by the 17th day before election day, the returning officer can make the appointments from other sources (s. 36). A similar requirement applies to the hiring of registration officers (s. 39(3)).
There is a timing problem with this requirement. Practically speaking, a list of potential officers cannot be sought from candidates before the 17th day before election day because the deadline for the confirmation of the last candidates to file their nominations is the 19th day before election day. This is only four days before the deadline for the submission of the lists, and candidates are often simply not organizationally prepared to provide the lists within the deadline.68
Removing the requirement for returning officers to solicit from candidates the names of potential deputy returning officers, poll clerks and registration officers would allow returning officers to begin recruiting qualified individuals for these positions earlier in the process. This would allow them more time to train the new people adequately and ensure that they have the skills required to fulfill their duties.
Recommendation: It is recommended that the Act be amended to remove the requirement for returning officers to solicit names from the candidates for appointments of deputy returning officers, poll clerks and registration officers.69
7.5 Leave of Absence to Be a Deputy Returning Officer or Poll Clerk
Deputy returning officers and poll clerks perform an essential service to the conduct of elections. Historically, deputy returning officers and poll clerks were principally drawn from a pool of persons who were not otherwise engaged in full-time employment. However, both the growing trend in Canadian society for two income households and the aging of the population have had the indirect effect of reducing the pool of available individuals. As Elections Canada has been advised by the Political Parties' Advisory Committee, and as confirmed by returning officers during the last election, it is becoming increasingly difficult to locate individuals who are free to serve as deputy returning officers and poll clerks on election day. Generally, aside from a short training course of two hours (to which travelling time should be added), a person need only commit one day to serving as a deputy returning officer or poll clerk on election day. Individuals who work as deputy returning officers and poll clerks at advance polls work for three days plus the evening after the polls close to count the ballots. Nonetheless, not all employers are prepared to provide the required time off to employees who may wish to work in this capacity.70
Recommendation: The Act should provide that an employer be under an obligation to provide an employee with leave of absence in order to serve as a deputy returning officer or a poll clerk. A mechanism should be provided, similar to that in the Manitoba Elections Act, by which an employer may obtain an exemption for persons whose absence would be seriously detrimental to the employer's business.71
7.6 Posting Names and Addresses of Deputy Returning Officers and Poll Clerks
Section 112 requires that, at least three days before election day, a returning officer post in his or her office, a list of the names and addresses of all deputy returning officers and poll clerks appointed to act in the electoral district, along with the number of the polling station in which each is to act. Interested persons have the right to inspect this list at any reasonable time. The returning officer is also required to provide this list to each candidate or candidate's representative. The underlying purpose of this provision is to allow candidates to know who will be working as a deputy returning officer or poll clerk and where they will be working. However, the existing public access to the list allows any interested person to not only know who is working where, but also that person's home address.
Allowing public access to the home addresses of persons serving as election officers allows verification by the public of compliance with s. 22(4) (election officers must reside in the electoral district in which duties are to be performed). However, it also amounts to a substantial intrusion upon the privacy of the persons serving in those capacities and could potentially pose a security risk for those individuals.
This degree of disclosure is also inconsistent with the statutory practice respecting the list of revising agents under s. 33(5). Those lists are not required to set out the home address of persons appointed as revising agents.
Recommendation: It is recommended that the Act be amended to remove the requirement for home addresses to be shown on the list of deputy returning officers and poll clerks that is publicly available.
7.7 Location of Returning Office
Subsection 60(1) of the Act directs that the returning office for an electoral district is to be located in that electoral district, but there is no direction as to where in an electoral district the returning office is to be located, other than the very loose requirement that it must be "convenient". Subject to those restrictions, a returning officer may locate the returning office anywhere he or she feels is appropriate (which is usually in the municipality where the returning officer resides). There is no requirement that the office be located in a part of the electoral district that will provide the best service or the easiest access to the electorate of that riding. For example, in a riding like Nunavut, which covers over 3 000 000 sq. km., an office located in Iqaluit, the municipality where the majority of the electors reside, would make more sense than one located in Igloolik, a much smaller community located farther north in the territory.
Recommendation: Subsection 60(1) of the Act should be amended to provide that the Chief Electoral Officer may direct the establishment of a returning office at a location within an electoral district that, in the opinion of the Chief Electoral Officer, will provide the best service or easiest access to the electorate of that district.
7.8 Election Officers at Advance Polls
Section 171 of the Act directs that advance polls shall be conducted in the same manner as the vote at a polling station on election day, unless otherwise provided. In light of the number of electors now using the advance polling option, the Act needs some adjustment. For example, s. 39(1) allows a returning officer to provide for registration desks at polling stations on election day to receive applications for registration by electors who are not on the lists. This allows for faster registration and fewer delays to other properly registered electors, than would be the case if electors had to register with a deputy returning officer at the polling station. Registration desks, however, cannot be created for advance polls because s. 169 directs that the revision of a list at an advance poll be conducted by the deputy returning officer and the poll clerk. At the 37th general election, the Chief Electoral Officer had to use his powers under s. 17(1) of the Act to permit the hiring of registration officers at advance polls, enabling poll officials to better handle the flow of electors at central polling stations.72
Similarly, there is currently no authority for a returning officer to group advance polls together in one central polling place in the same way that a returning officer can group together polling stations on election day, as set out under s. 123. Although there is authority for the returning officer to merge two advance polling districts into one, that would result in only one advance polling station for both of the merged districts, rather than a central place with two advance polling stations.
There is no current purpose served by these limitations. They arose in a time when advance polling stations were not as busy as they have become in recent times.
Recommendation: Section 169 of the Act should be removed. This will allow elector registration to proceed at an advance poll in the same way it does on election day, through the general authority of s. 171. In addition, an authority similar to s. 123 should be extended to the returning officer to group advance polling stations together in one place. This authority would be subject to the approval of the Chief Electoral Officer to ensure that too many stations, representing too wide an area, were not being grouped at one polling location. The definition of "central polling place" in s. 124 should be amended to include advance polling stations that have been grouped together.
7.9 Criteria for Appointment of Central Poll Supervisors
Subsection 124(2) provides that where a returning officer establishes a central polling place that contains four or more polling stations, the returning officer may appoint a central poll supervisor to supervise proceedings at the central polling place and to keep the returning officer informed of any matter that may adversely affect the proceedings.
Greater flexibility is required respecting this provision. There can be as many as 1 000 electors being served at three polling stations, which, particularly when combined with the number of election officers manning such stations, warrants the assistance of a central poll supervisor. However, the ability to appoint a central poll supervisor should be based on need, rather than simply the number of polls grouped together. There may be circumstances in particular polls (for example where a heavy turnout is expected) where the presence of a central poll supervisor would be useful.
Recommendation: Subsection 124(2) should be amended to allow a returning officer to appoint a central poll supervisor whenever the returning officer believes it would be appropriate to do so.
7.10 Authority of a Judge to Summon Witnesses for Recount
A judge conducting a judicial recount only has the authority to summon persons specified in the Act, and that authority varies depending on the question before him or her. The judge may summon any witness for the purpose of arriving at the facts with respect to a missing ballot box or statement of a vote (s. 304(4)). However, the judge's authority is much narrower respecting the conduct of the recount itself. In that case, he or she can only summon a deputy returning officer or poll clerk as a witness (s. 304(5)). This latter authority is too narrow, insofar as ballots or envelopes containing ballots may have been handled by officers other than the deputy returning officer and poll clerk. The evidence of these other officers may also be relevant to the recount. For example, in the last general election, the evidence of a special ballot coordinator, (an administrative position in each returning office), was required in one recount. Judges have raised concerns with the limited nature of their authority to summon required witnesses. Also, it is not unusual to accord a judicial officer the authority to summon witnesses who may be necessary for the due administration of that officer's mandate. For that reason, the authority of the judge to summon witnesses in s. 304(5) should be expanded to include any witness necessary for conducting the recount.
Recommendation: Subsection 304(5) should be amended to provide that a judge may compel the attendance of any witness for the purpose of conducting a recount.
7.11 Assistance of Elections Canada Officials with Recount
Subsections 300(4) and 301(6) provide for the presence of the returning officer during the recount conducted by the appropriate judge for the electoral district. The logistics of the recount (i.e. provision of resources, delivery of ballot boxes and statements of the vote) are organized by the returning officer, in accordance with the judge's instructions. Returning officers are supported by Elections Canada in their interpretation of the relevant sections of the Act, and in providing information and guidance to the judge, who, in most cases, is unfamiliar with this rather rare process and may request assistance. The Act, however, does not specifically provide for a member of the staff of the Chief Electoral Officer to be present to assist the returning officer and the judge in understanding the process, where requested.
Recommendation: In order to increase the administrative efficiency of the recount process, it is recommended that s. 303 be amended to make clear that, upon the request of the judge, an officer provided by the Chief Electoral Officer may also be present at a recount for the provision of assistance to the judge.
7.12 Greater Flexibility Respecting the Tariff of Fees
Subsection 542(1) of the Act provides that, on the recommendation of the Chief Electoral Officer, the Governor in Council may make a tariff fixing or providing for the determination of fees, costs, allowances and expenses to be paid and allowed to returning officers and other persons employed at or in relation to elections under the Act.
A difficulty has arisen in the past respecting the restrictive nature of the authority of the Governor in Council to make this tariff. The Standing Joint Committee of the Senate and of the House of Commons for the Scrutiny of Regulations has suggested that the tariff in question must either set specific fees, costs, allowance etc., or provide a means whereby that fee, cost, allowance, etc., may be calculated. The former would amount to "fixing" a fee, while the latter would amount to "providing for the determination" of the fee.73
A restrictive tariff power of this nature may not contemplate fees being set at rates by referentially incorporating fees set out in other instruments (such as specific Treasury Board Directives) as they may be amended from time to time. Such a practice could, arguably, amount to a delegation of authority by the Governor in Council to the body whose instruments were being referentially incorporated.
More flexibility, however, would bring a desirable advantage to the tariff. The tariff of fees covers items such as: the remuneration of returning officers for services in conjunction with holding a poll, for attending at a recount, for travel expenses, and for storing materials; the hourly rate of registration officers; and, the remuneration of deputy returning officers and poll clerks. While some of these items are specific to the tasks of election officers, others, such as travel expenses, are similarly incurred by federal government employees. In those cases, an attempt is made to ensure that the tariff reflect the allowances set by Treasury Board Directive. However, the requirement that the Governor in Council expressly prescribe or provide the means of calculating a fee precludes the tariff referentially incorporating a Treasury Board Directive as it may be amended from time to time. The Directive can only be incorporated as it exists at a specific date. This imposes an undue rigidity upon the tariff, which requires its frequent amendment. Flexibility would allow the tariff to better deal with changing circumstances by, for example, a flexible incorporation of other instruments.
Recommendation: It is recommended that s. 542 be amended to provide that the Governor in Council may referentially incorporate into the tariff instruments made by other bodies, as they may be amended from time to time. This will allow the Governor in Council greater flexibility in providing for the required fees. In order to avoid confusion respecting incorporated instruments amended in the midst of an election, the Act should further provide that in such a circumstance, the Chief Electoral Officer have the authority to delay the effective date of the amended incorporated instrument until a date after the end of the election.
7.13 Political Rights of Staff of Elections Canada
That elections should be conducted by an objective authority has been a fundamental principle of federal elections since the creation of the Office of the Chief Electoral Officer in 1920. Neutrality is essential for a number of reasons. It ensures that the performance of electoral tasks is not affected, consciously or unconsciously, by an election official's commitment to a particular party, candidate or issue. It allows candidates and other electoral participants to have confidence that their relations with Elections Canada staff, and the service and advice rendered by that staff, is free from bias. Also, it allows the public to have confidence that the electoral process is conducted in a fair and unbiased manner.
Not only must the election of governments be conducted in a fair and impartial manner, but it is vital to their ability to govern that governments are perceived to be elected fairly and impartially. There must be no reasonable grounds for a candidate or a party to suspect that the Office of the Chief Electoral Officer is favouring one party over another. Suspicions of this nature may lead to reluctance to accept advice or directions from the Office of the Chief Electoral Officer, may increase acrimony in the campaign and may threaten the ability of Elections Canada to function as a neutral arbitrator of the event. Equally, governments must be perceived by the citizenry to have been elected fairly.
The integrity of elections would be at risk if Elections Canada staff members were perceived by the public and election participants as actively preferring any particular candidate or party in the election. The public endorsement of a candidate or party, or the active campaigning for, or against, the election of a particular candidate or party by a member of election staff may undermine that person's neutrality.
This is not to say that staff members who actively campaign for or against a particular party, candidate or position outside of their employment could not put aside personal views and perform electoral duties efficiently and impartially as the law requires. However, the more active the "after hours" commitment to a particular party, the greater the difficulty staff members may face in divorcing themselves from that commitment during work hours. Furthermore, attitudes may be unconsciously affected. Beyond this, it would only be human nature for a candidate or party to be uncomfortable with the services rendered by a staff member who is publicly committed to the election of an opponent.
The principle of neutrality in election delivery is deeply ingrained in the Canada Elections Act, so deeply ingrained that the person who is charged with the ultimate responsibility for the delivery of those services, the Chief Electoral Officer, is denied his basic constitutional rights to vote. This is to ensure that he is not consciously or unconsciously affected in the performance of his statutory mandate by considerations and commitments he might undertake in exercising his democratic rights. Beyond this, s. 23 imposes the express duty upon all election officers to swear an oath, in writing, to perform the duties of their office in an impartial manner. The section also expressly prohibits any election officer from communicating information obtained in the course of performing his or her duties under the Act for a purpose not related to the performance of those duties. These provisions go far in securing the necessary neutrality of election officers, but most staff members of Elections Canada are not election officers under the Act as that term refers to returning officers, assistant returning officers, revising agents, deputy returning officers, poll clerks, registration officers, and other similar officials.
Susceptibility to being unconsciously affected by personal views and beliefs in the performance of one's tasks is only human. This cannot be legally prohibited in any effective way. However, the more actively a person, on his or her own time, campaigns for a particular candidate, party or position, the more difficult it is for that person to ensure that those attitudes do not intrude, consciously or unconsciously, upon the private performance of his or her duties.
Furthermore, regardless of the personal ability of individuals to divorce their professional duties from their personal actions, the public perception of neutrality cannot help but be threatened by active public support for particular issues by the very officials charged with providing a neutral and fair means for the public to choose between competing issues.
While it is tempting to say that only openly public action can threaten public perception, private actions can have the same effect if discovered, or even if suspected. Perception is a matter of reasonable belief, not simply objectively demonstrable fact. Thus, the reasonable suspicion by a candidate, party or the public that Elections Canada officials may be actively supporting a particular position may undermine the integrity of the electoral process.
The Referendum Act expressly recognizes the principles espoused here. The Referendum Act is essentially a mechanism for providing the process for opposing positions to be considered and endorsed by the public. The Act expressly recognizes the importance of the delivery of that process being neutral. To this end, it indirectly provides, in ss. 2(1) and 32, by reference to s. 33 of the Public Service Employment Act, that no person on the staff of the Chief Electoral Officer can participate in a referendum.
Prior to the decision of the Supreme Court of Canada in 1991 in Osborne v. Canada (Treasury Board) (1991), 82 D.L.R. (4th) 321 (S.C.C.) the political neutrality of Elections Canada staff (and other public servants) was secured by s. 33(1) of the Public Service Employment Act, which directed that no deputy head, and, except as authorized under the section, no employee of the public service could engage in work for or against a candidate or political party, nor could an employee be a candidate. The Supreme Court, in Osborne v. Canada, however, declared s. 33 to be of no force and effect, except with respect to deputy heads, as a result of its overly broad intrusion upon Charter rights of free expression and association. The Supreme Court was concerned that, in its broad application to all public servants, regardless of role or visibility, s. 33 was broader than it had to be in order to protect the important principle of public service neutrality. That concern is not relevant in the context of a similar prohibition applied to staff of the Chief Electoral Officer, because this is a much narrower population than the public service as a whole, all of whom perform only functions directly, or indirectly, related to electoral events.
Since Osborne v. Canada, neutrality in Elections Canada staff has been secured by the administrative requirement for all staff to agree that during their term of employment with Elections Canada, they will not work for or on behalf of any federal or provincial political party, candidate for federal or provincial elective office, nor any person, body, agency or institution with partisan political purposes or objectives, nor for any federal or provincial referendum committee. They agree, during the term of their employment, not to actively or publicly support or oppose the election of any federal or provincial party or candidate for federal or provincial elective office, nor to actively or publicly support or oppose any option in a federal or provincial referendum. Lastly, they declare that they are not presently engaged in politically partisan activities at the federal or provincial level.
The concern with this approach is that should this requirement be found to infringe the Charter rights of free expression or association, it cannot be saved under s. 1 of the Charter, as it is an administrative policy and not a law. Only laws can be saved under s. 1 of the Charter.
Therefore, in order to preserve and continue the actual and perceived neutrality of Elections Canada, the Canada Elections Act should adopt a similar position to that adopted in the Referendum Act respecting the neutrality of staff of the Chief Electoral Officer.
Recommendation: It is recommended that the Act be amended to prohibit any member of the staff of the Chief Electoral Officer, except when on a leave of absence from Elections Canada, from being a candidate in a federal or provincial election; from engaging in work for or against a candidate, party or issue, in a federal or provincial election; from supporting any candidate or party, or organization with partisan political purposes, at the federal or provincial levels; and, from supporting or opposing any option in a federal or provincial referendum.
The Act should further provide that a leave of absence be granted by the Chief Electoral Officer where, in the opinion of the Chief Electoral Officer, the future usefulness of a staff member will not be impaired by that person's participation in the electoral process.
7.14 The Right to Strike of Elections Canada Staff
Employees of Elections Canada have the right to strike under the Public Service Staff Relations Act, except for those whose positions are excluded from collective bargaining and those whose positions have been made "designated positions" under that Act. It was recommended earlier, in the 1996 Strengthening the Foundation: Annex to the Report of the Chief Electoral Officer of Canada on the 35th General Election, that the PSSRA be amended to remove the right to strike for Elections Canada employees. This recommendation is repeated here.
The importance of the right to strike and the social benefits that have been achieved in Canada, partly as a result of the right of labour to withhold its services, are recognized facts of Canadian life. However, concerns were expressed in the 1996 Annex to the Report of the Chief Electoral Officer of Canada on the 35th General Election respecting the significant effect on the electoral process that legal strikes could have.
Under the Public Service Staff Relations Act, there are two ways in which the right of public servants to strike can be suspended.
First, if a strike takes place when Parliament has been dissolved and a general election called, the Governor in Council can defer the right to strike if, in the opinion of the Governor in Council, the strike adversely affects or would adversely affect the national interest. That deferment can only last until the 21st day following the date fixed for the return of the writs.
Second, persons who occupy "designated positions" cannot strike. These positions are designated by the Public Service Staff Relations Board under s. 78.1 of the Public Service Staff Relations Act and relate to the safety or security of the public. Generally, the union and the employer determine through negotiation which positions meet these criteria, but there is also a process under the PSSRA whereby the designation can be determined in the absence of agreement. Currently all positions in Elections Canada have been made designated positions for the period during a general election or a referendum. Only some positions have been "designated" for the period of a by-election.
Normally, Parliament can legislate a return to work if necessary, although this is not an option when Parliament has been dissolved for a general election.
None of these provisions should be considered adequate in the context of the performance of the democratic mandate of the Office of the Chief Electoral Officer of Canada. They are either unduly reactive and time-consuming in the context of the limited time frames of unpredictable electoral events (particularly applicable to deferment by the Governor in Council), unavailable (legislation in the context of a general election), or insufficient (designated positions).
The current approach, which frees Elections Canada from the threat of legal strikes only during actual election campaigns, does not reflect the reality of electoral operations.
The successful conduct of an electoral event does not depend solely on what is done during the campaign period. The successful delivery of an event depends upon significant advance preparation. This includes the procurement of materials, updating of systems, staffing and training of personnel, training of returning officers and assistant returning officers, establishment of communications plans, and the mobilization of impressive numbers of personnel to serve a culturally diverse and geographically dispersed population. The regular progress of this advance preparation could be disrupted by a legal strike.
Furthermore, general elections, referendums and frequent by-elections can be called at any time without advance notice to Elections Canada. Consequently, the Office of the Chief Electoral Officer of Canada must maintain a continual state of election readiness. This state of election readiness cannot be maintained between elections during a period in which a strike may be underway.
The existing exemption for elections is itself insufficient during actual election periods. If an election were called during a legal strike, triggering the strike exemption respecting designated positions, it would be difficult to impossible to bring staff back into effective functional operation within the short time frames of electoral events. Also, it would not be desirable for the conduct of an election to be mixed with the high feelings of a labour action.
The only effective way to ensure that a strike does not undermine the very social democratic basis upon which modern labour relations rests, is to legislatively remove the right to strike from employees of the Office of the Chief Electoral Officer of Canada.
Such action would not prejudice the right of employees to benefit from the success of any strike action carried out by their union. And, while it would prohibit them from physically joining any such strike, it would not prohibit them from supporting their co-unionists through other means, such as financial support. The basic effect of this prohibition would be to preclude the transformation of the democratic process into a bargaining tool. As noted in the 1996 Annex, other jurisdictions, including Quebec, Ontario, Manitoba and British Columbia, prohibit employees of the election agency from striking.
Recommendation: The Public Service Staff Relations Act should be amended so that the right to strike is removed for employees of the Office of the Chief Electoral Officer of Canada.