Report of the Chief Electoral Officer of Canada on the 41st general election of May 2, 2011

1. Toward the
41st General Election

This section summarizes significant activities of the Office of the Chief Electoral Officer (commonly known as Elections Canada) following the 40th general election, held on October 14, 2008, as well as some issues that became more prominent during the period leading to the 41st general election, held on May 2, 2011. Within that period of two and a half years, the Chief Electoral Officer submitted three major reports to Parliament:

• The Report of the Chief Electoral Officer of Canada on the 40th General Election of October 14, 2008 presented a detailed picture of the event, from the issue of the writs to the official results and the final wrap-up.
• The Report on the Evaluations of the 40th General Election of October 14, 2008 (the Evaluations Report) assessed the conduct of the election and noted challenges to be addressed.
• The report entitled Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election (the Recommendations Report) proposed legislative amendments and administrative measures to address the challenges noted in the Evaluations Report.

Within the same period, Elections Canada conducted by-elections in four electoral districts on November 9, 2009, and in another three electoral districts on November 29, 2010. Information on these by-elections can be found in their respective statutory reports, which are available on-line at www.elections.ca under Resource Centre > Reports > Elections Canada's Official Reports.

1.1 Changing Expectations

Canadian society continues to experience rapid change. Today, government services are expected to be more convenient. Electors and candidates alike look for services that are available wherever they happen to be, when they want the services and on their own terms. Meeting their expectations requires new approaches.

Convenience in electoral services

Increasingly, Canadians expect to be able to conduct their business electronically, including when they engage in the electoral process. This is why Elections Canada has been preparing to provide e-services.

Voter registration is an important component of the electoral process that could be performed electronically. It was one of the subjects referred to by the Chief Electoral Officer in his 2010 Recommendations Report. The report notes that Alberta and British Columbia have introduced on-line voter registration, while Ontario is developing a similar system. The report proposes that the Canada Elections Act be amended to allow Elections Canada to provide a full line of services for on-line registration. Elections Canada will begin offering limited on-line registration services in the spring of 2012, based on the current legislation.

Candidates and political parties could also benefit from e-services. The Recommendations Report called for authentication methods other than traditional signatures for the transmission of information and the filing of returns.

Under section 18.1 of the Act, the Chief Electoral Officer may carry out studies on alternative voting methods and test electronic voting processes for use during general elections or by-elections, subject to the approval of the House of Commons Standing Committee on Procedure and House Affairs and the Standing Senate Committee on Legal and Constitutional Affairs. Elections Canada has been examining Internet voting as a complementary and convenient way to cast a ballot. The Chief Electoral Officer is committed to seeking approval for a test of Internet voting in a by-election held after 2013.

Canadians are increasingly using advance polls to cast their ballot. They appear to regard advance voting days as simply additional days to vote, no different from election day. They expect the same service and ease of voting at advance polls. This expectation makes it necessary to increase the number of advance polling stations in urban areas, with the aim of alleviating lineups. It also calls for more advance polls in remote rural areas, where distance is a barrier to access, to bring the ballot boxes closer to the electors.

Accessible voting for all electors

Three factors stop electors from voting: apathy, inconvenience and administrative barriers. Apathy is a societal issue largely beyond Elections Canada's control. The above paragraphs discussed ways to make the electoral process more convenient. The following discuss the removal of administrative barriers.

The way Canadians view barriers to exercising constitutional rights has been evolving over time. In the past, if some people had physical limitations, the solution was to set up a special arrangement for them. Today, the expectation is that the physical environment in which services are offered to the public should be free of barriers so that it serves all Canadians, whatever their abilities. In other words, the systems should be barrier-free, enabling all Canadians to participate on an equal footing as a matter of right.

A fully accessible electoral process is what Canadians expect, and Canada is bound to provide it under international and domestic law: the United Nations Convention on the Rights of Persons with Disabilities, the Canadian Charter of Rights and Freedoms, and the Canadian Human Rights Act.

This approach demands fully accessible polling sites. When one elector had to struggle with a flight of stairs at a Toronto polling station in 2008, the result was a complaint that his rights had been violated. The case of Hughes v. Elections Canada eventually led to changes that went considerably beyond providing level access to polling sites. The Canadian Human Rights Tribunal required Elections Canada to make significant changes to its approach to accessibility issues. In particular, the Tribunal required Elections Canada to:

• update its accessibility policies and guidelines
• develop a mechanism for processing complaints received on voting days
• provide better signage for persons with disabilities in the area of polling sites
• consult more widely with disability groups
• implement a procedure for verifying the accessibility of facilities on the day of an electoral event
• revise and update its training tools concerning accessibility

Elections Canada responded positively to the ruling and succeeded in fully complying with the Tribunal's decision by February 2011, in advance of the 41st general election.

Beyond polling site accessibility is the notion that all electors should be able to cast a ballot independently and secretly. In the November 29, 2010, by-election in Winnipeg North, Elections Canada conducted a pilot project involving an assistive voting device (AVD) for use by persons with visual impairments or limited dexterity. The AVDs were placed at all advance polls, the local Elections Canada office and seven central polling sites on election day.

The AVD used in this by-election did not prove to be a practical solution enabling electors with disabilities to vote independently and in secrecy. Nevertheless, Elections Canada will continue to study additional methods that could facilitate the voting process for electors with disabilities.

Voter identification requirements may also be a barrier to voting. The 2009 Evaluations Report noted that some groups of electors in the 40th general election found voting more difficult than the general population did, particularly because of the proof-of-address requirement. In another pilot project for the November 2010 by-elections, Elections Canada accepted the voter information card (VIC) for identification purposes at polling sites serving seniors' residences, long-term care facilities, Aboriginal reserves and on-campus student residences. The success of the initiative led to the expansion of the pilot project, for these groups of electors, to all electoral districts in the 41st general election.

1.2 Political Financing

Following the 40th general election, Elections Canada's main focus in the area of political financing was its review of the regulatory framework for political entities.

Review of the regulatory framework

The Evaluations Report noted that the political financing provisions have become more complex and place a greater burden on political entities. The Recommendations Report called for a series of measures to reduce this burden.

Even before the 40th general election, in 2008, Elections Canada undertook to review the regulatory framework. The aim of the review was to identify ways to streamline the framework and reduce the regulatory burden on political entities.

Elections Canada established the Regulatory and Compliance Committee with a mandate that included defining a streamlined regulatory framework for political financing – one that is consistent with applicable legislation and that promotes specific initiatives to reduce the burden on participants in the electoral process. The Committee has also been asked to define processes for identifying and resolving regulatory issues, or making recommendations for their resolution, in consultation with stakeholders.

As one of its first initiatives, the Committee reviewed the results of focus groups commissioned by Elections Canada, consisting of candidates' official agents and financial agents of electoral district associations. The focus groups sought to determine the key challenges faced by the agents and how Elections Canada could tailor its tools and support to help them carry out their duties (see the report at www.elections.ca under Resource Centre > Research > Political Financing).

An often-repeated comment in the focus groups was that official agents carried significant responsibility under the Act but that this was not reflected in the level of their authority during the electoral campaign. Elections Canada could not deal with this problem, but was able to address other difficulties faced by the agents. Among these were the content and tone of Elections Canada's written communications and the need for better tools, training and support.

In addition to in-person training for candidates' official agents and financial agents of electoral district associations, Elections Canada has developed on-line tutorials and has posted these on its Web site.

The focus groups were followed by an analysis that recommended consolidating and simplifying guidance materials. Elections Canada is currently engaged in revising and consolidating these various materials into a comprehensive tool for candidates and official agents, registered parties and their chief agents, and other entities' financial agents.

The Political Financing Sector recently reviewed the documentation it sends to official agents during and after an election. It revised the documents to make them simpler and clearer. In 2011–2012, the Sector will conduct a similar review of the documentation sent to electoral district associations.

Members of the Regulatory and Compliance Committee suggested a number of changes to the Act, and most of these were incorporated into the Chief Electoral Officer's Recommendations Report following the 40th general election.

1.3 Litigation

There were three significant court decisions involving Elections Canada following the 40th general election:

• Hughes (discussed earlier) – In February 2010, the Canadian Human Rights Tribunal ordered a range of remedies to improve the accessibility of polling sites for electors.
• Callaghan v. Canada (Chief Electoral Officer) – In February 2011, the Federal Court of Appeal upheld the Chief Electoral Officer's decision to refuse reimbursement of election expenses claimed by candidates in circumstances where the Chief Electoral Officer was not satisfied that the expenses had been incurred by the candidates (and not by their party).
• Conservative Fund Canada v. Chief Electoral Officer of Canada – In December 2010, the Ontario Court of Appeal upheld the Chief Electoral Officer's position that Goods and Services Tax rebates pursuant to the Excise Tax Act do not affect the value of election expenses under the Canada Elections Act, whether for the purpose of spending limits or the reimbursement of expenses.

1.4 Legislative Reform

There was only one change to electoral law in the period between the 40th and 41st general elections: updating of the Referendum Regulation by the Chief Electoral Officer. However, there were two notable developments with regard to potential changes.

Recommendations Report

In June 2010, the Chief Electoral Officer submitted the Recommendations Report to the Speaker of the House of Commons. This followed up on the challenges noted in the Evaluations Report, tabled in Parliament the previous year. The Recommendations Report is divided into four chapters:

• Chapter I deals with issues relating to the electoral process. It contains recommendations to make the process more adaptable and effective, preserve trust and increase accessibility.
• Chapter II deals with issues related to political financing. It presents recommendations to maintain the integrity of the system and reduce the regulatory burden.
• Chapters III and IV provide recommendations that would clarify certain aspects of the legislation as it relates to governance and address a number of more technical issues.

On October 7, 2010, the Chief Electoral Officer made an initial presentation about the Recommendations Report before the House of Commons Standing Committee on Procedure and House Affairs. From October 2010 to March 2011, the Committee held 10 meetings to study the report. However, it did not complete its study before Parliament was dissolved on March 26, 2011. Elections Canada is hopeful that the Committee will complete its study of the report in the coming months.

Since issuing its recommendations, Elections Canada has adopted a number of administrative improvements in relation to the accessibility of the electoral process:

• In response to the Hughes ruling, it improved access to polling sites for electors with disabilities.
• It provided more opportunities to vote in advance in rural areas by increasing the number of rural advance polls.
• It allowed use of the VIC as proof of identity and address for selected groups of electors who might otherwise have had difficulty providing the necessary proof.
• It extended communications and outreach initiatives to electors, particularly students and Aboriginal Canadians.

However, Elections Canada finds itself constrained by the Canada Elections Act. Many important improvements – for example, in the area of political financing – would require changes to the legislation.

Referendum legislation

The Referendum Act gives the Chief Electoral Officer authority to make a regulation adapting the Canada Elections Act for the purposes of a referendum. Because of the numerous changes made to the Canada Elections Act since 2001, the date of the previous regulation, it was necessary to undertake a comprehensive review of the Referendum Regulation.

In June 2009, the Chief Electoral Officer submitted to the Clerks of the House of Commons and Senate a proposed revised Referendum Regulation. On October 7, 2009, he explained the proposed regulation in an appearance before the House of Commons Standing Committee on Procedure and House Affairs. After consultation, the Chief Electoral Officer made the regulation in February 2010.

In his appearance before the Committee, the Chief Electoral Officer noted that there are a number of discrepancies between the Canada Elections Act and the Referendum Act, particularly with regard to political financing. He recommended that the Committee review the Referendum Act. This statute was passed by Parliament in 1992 but has never been reviewed.

Subsequently, the Committee decided to initiate such a review and devoted more than eight hours to the subject in six meetings from November 17, 2009 to October 26, 2010. The Committee has not yet completed its review. It should be noted that, due to the need to maintain constant election readiness in recent years, Elections Canada is not in a position to conduct a referendum as provided for under the Referendum Act.

1.5 Readiness

Elections Canada must conduct ongoing or cyclical activities between general elections to maintain a base level of election readiness. This involves such things as continuously updating the National Register of Electors and electoral geography databases; restocking election supplies and reprinting manuals for election workers; and recruiting and training some 30 new returning officers each year – approximately 10 percent of the total.

In addition, the 40th general election was the third in succession to produce a minority government. In this situation, Elections Canada had to maintain a heightened state of readiness on an ongoing basis. In a majority government context, Elections Canada can follow a "just in time" strategy, planning actions for when they will be needed. But in a minority government situation, Elections Canada has had to follow a "just in case" strategy so that it would be ready for an election whenever one might be triggered. In terms of timing, crucial events were votes on the Throne Speech, votes on the budget, or other confidence motions.

Heightened readiness involved the following kinds of activities:

• Returning officers had to check the availability of potential offices, key staff and service providers two to three times a year. They had to be ready at all times to deploy local office infrastructure. To support them, Elections Canada maintained up-to-date, ongoing arrangements with key suppliers: IBM, to supply computer equipment to the more than 400 returning officers and additional assistant returning officers; telephone companies for phone lines; and the Canada Post Corporation for the delivery of supplies to local Elections Canada offices across the country.
• Additional staff at Elections Canada in Ottawa had to be hired and trained on an ongoing basis to support returning officers and respond to hundreds of thousands of calls from electors.
• Elections Canada learned to become more efficient at managing uncertainty and designed contingency plans that are less costly. For example, instead of reserving telephone lines for a year-round monthly fee, local offices relied on cellular phones for the first 10 days of the election, while land lines were still being installed. This strategy had been tested successfully in the November 2009 by-elections and further refined in the November 2010 by-elections. Furthermore, computers in the local offices were connected to Elections Canada in Ottawa via a wireless high-speed connection, which was considerably faster than the previous dial-up connections. The two upgrades enabled local offices to serve electors within the first few hours after the issue of the writs. The changes also reduced readiness costs by approximately $1.5 million a year.