Modernizing the Electoral Process – Recommendations from the Chief Electoral Officer of Canada following the 37th general election
1 For an overview of the various post-events, see the summary entitled 2000 General Election Post-Event, published by Elections Canada.
2 Bill C-63, which received royal assent on December 18, 1996, provided for the establishment of the National Register of Electors in April 1997, following a final general enumeration of electors. Although this occurred prior to the June 1997 federal general election, in practice, the November 2000 federal general election was the first to be conducted using the National Register of Electors to produce preliminary lists of electors.
The use of a permanent list of electors at the federal level had been considered by the Royal Commission on Electoral Reform and Party Financing in 1992. The Royal Commission recommended the production of federal lists of electors based on provincial and territorial enumeration or voter registers (rec. 2.4.2). At that time, technology did not allow for a national database of electors. This possibility was enabled in 1992 by the establishment of the first automated federal list of electors.
Currently, the legislation of six Canadian jurisdictions provides for a permanent list of electors (Newfoundland, New Brunswick, Quebec, Ontario, Alberta, and British Columbia).
3 In addition to these legislative recommendations, to better serve its stakeholders, Elections Canada is also reviewing and enhancing its administrative programs, systems and services.
4 Subsection 55(1) of the Canada Elections Act states that the Chief Electoral Officer may enter into an agreement with any body responsible under provincial law for establishing a list of electors. Such agreements enable the Chief Electoral Officer to share information contained in the National Register of Electors for establishing a list of electors in another jurisdiction.
The National Register of Electors is regularly updated with data from the Canada Customs and Revenue Agency and Citizenship and Immigration Canada.
5 For more details on the 37th general election, see the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000.
6 For more details on the 37th general election, see the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000.
7 All Canadian provinces and territories allow for election day registration except for Quebec and Yukon Territory.
8 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.
9 The practice of requiring a signature upon registration varies across Canadian jurisdictions. In Quebec [E.A., s. 40.6], an elector may request that his or her name be added or removed from the register by providing the Chief Electoral Officer two identifying documents, as specified by the Chief Electoral Officer, in support of the request.
In Ontario [E.A., s. 15.1(1)-(2)], the identification required of an elector wishing to add or remove the elector's name from the register must be accompanied by identification as required by the Chief Electoral Officer.
The Alberta Election Act makes no reference to electors' signatures upon registration.
New Brunswick [E.A., s. 20.9] and British Columbia [E.A., s. 41(3)] require all electors to provide a written signature upon application.
10 In Alberta [E.A., s. 11(2)], the Chief Electoral Officer may update the register using any information obtained by, or available, to him or her.
11 According to the 2000 Canadian Election Study, 83% of electors indicated having received their Voter Information Card correctly addressed to their name.
12 For more details on the 37th general election, see the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000.
13 Members of the Standing Committee on Procedure and House Affairs expressed concern about the voter information card during the Chief Electoral Officer's appearances on March 1 and 27, 2001.
Elections Canada's post-event evaluations of the 37th general election show that returning officers indicated that 5% of electors found the term "occupant" somewhat confusing. The issue of "or occupant" was also raised by several members of the Standing Committee on Procedure and House Affairs, during an appearance by the Chief Electoral Officer on March 1, 2001.
14 For more details on the 37th general election, see the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000.
15 In British Columbia, a deputy returning officer may require an elector to either produce satisfactory evidence of eligibility or a solemn declaration when there is doubt as to that electors eligibility [E.A., s. 111(3)]. In all other provinces and territories (except Quebec where all electors must prove their eligibility), an elector must, on request of a deputy returning officer, poll clerk, candidate or candidate's agent, complete the prescribed oath, affirmation, or declaration to prove their eligibility to vote in the election.
16 The drawing of lots has historically been one method of solving such problems where the law is silent. Drawing lots is also used legislatively. For example, the Quebec Election Act specifically states that where two candidates have identical names, the returning officer must draw lots to determine the order of names on the ballot paper [E.A., s. 324]. In Ontario, such incidences are resolved at the discretion of the Chief Election Officer [E.A., s. 27(8)]. In British Columbia, the Chief Electoral Officer may modify the names or include additional information (such as address) to differentiate between candidates with the same name [E.A., s. 86(4)]. In other jurisdictions, candidates' names are often printed with their occupation or address, which allows for easy alphabetizing in the case of identical names.
17 The act defines the validity of a ballot to be counted. Those failing to qualify, which include protest votes as well as those considered non-valid for any other reason, are put apart and classified in one single group known as the rejected ballots, when tabulating the election results.
18 While these five jurisdictions offer electors the option of declining a ballot, only Manitoba requires the Chief Electoral Officer to include the number of declined ballots in the report to the Legislative Assembly. In this way, the expression of a voter's discontent is reflected in the final vote tally.
19 For more details on the 37th general election, see the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000.
20 With the coming into force of Bill C-78, An Act to Amend Certain Acts with Respect to Persons with Disabilities (1992), the Canada Elections Act was amended to provide level access at all advance polls, ordinary polling sites, and the offices of returning officers. Nearly all provinces have similar requirements.
Despite the fact that only 0.5% of the polling sites did not provide level access, Elections Canada's post-event evaluations of the 37th general election showed that 13% of the special needs association representatives surveyed reported that the polling stations were not physically accessible and accommodating to their members, while 57% reported that they were well adapted to their members' special needs.
21 In New Brunswick, for example, electors may apply for a transfer certificate at any time up to the opening of polls on election day [E.A., s. 80(1), 80(5.1)].
22 In Strengthening the Foundation: Annex to the Report of the Chief Electoral Officer of Canada on the 35th General Election, the Chief Electoral Officer recommended that provision be made to allow an elector to apply for a transfer certificate at any time until the close of polls on election day, should they be unable to vote without difficulty, at a polling station without level access.
23 The Royal Commission on Electoral Reform and Party Financing recommended in 1992 that the Special Voting Rules be extended to all eligible voters (rec. 2.2.5). As a result, Bill C-114 was passed by Parliament in 1993, removing the restrictions on eligibility to vote by special ballot (Canadian Forces electors and other specific categories).
24 In Saskatchewan, an elector who requests a ballot after another person has already voted in that voter's name must make a voter's declaration before receiving a ballot [E.A., s. 70]. In British Columbia, such an elector must either produce satisfactory identification to the deputy returning officer, or make a solemn declaration [E.A., s. 112]. In Ontario, an elector who attempts to vote after another elector has already voted in his or her name must execute the prescribed statutory declaration [E.A., s. 47(3)]. In most other jurisdictions, voters are required to take an oath before the deputy returning officer, not a solemn declaration.
25 Section 3 of the Canadian Charter of Rights and Freedoms provides that "every citizen of Canada has the right to vote in an election of Members of the House of Commons or of a legislative assembly, and to be qualified for membership therein."
The nomination regime was initially implemented in 1874, when the requirements for a candidate's deposit and supporting signatures were introduced. Political parties were not recognized in electoral law until 1970. However, our modern electoral democracy has evolved to a point where most candidates in federal elections are nominated by registered political parties. The rules of nomination have changed over the years to reflect this trend, and must continue to do so.
26 According to the Royal Commission, nomination requirements serve to demonstrate that a person's candidacy is "serious and related directly to the electoral process." RCERPF, Vol. 1, p. 87.
As a result of changes introduced with Bill C-2 in May 2000, returning officers must verify within 48 hours, that all names and signatures on the nomination papers are electors entitled to vote in that electoral district. During the 2000 general election, four candidates' nomination papers were rejected because they did not collect the required number of signatures from electors residing within the riding.
27 Elections Canada's post-event evaluations of the 37th general election revealed that both candidates and political party representative were generally satisfied with the current rules for candidates' nomination. Candidates were more satisfied (88%) than political party representatives (45%). During the 12th Session of the Advisory Committee of Political Parties, a number of party representatives recommended that Elections Canada review and simplify the nomination process.
28 All provinces and territories have signature requirements for candidates seeking nomination. The number of signatures required in provincial elections ranges from 4 signatures in Saskatchewan to 100 in both Quebec and Manitoba (although neither Manitoba nor Quebec require a deposit).
29 Electronic delivery (such as fax) of nomination papers was enabled by Bill C-2 in May 2000. Previously, only candidates in remote ridings listed in the Act were permitted to fax nomination forms, as long as the original documents were received within 48 hours.
30 The $1 000 deposit was established in 1993, following the recommendation of the Royal Commission on Electoral Reform and Party Financing (rec. 1.3.15). The original deposit sum, established in 1874, was $50, which was raised to $200 in 1882 and remained at that amount until 1993. Similar systems exist in the provinces and territories, where candidate deposits are generally $100 or $200. Manitoba and Quebec do not require a candidate to submit a deposit, but have the highest signature thresholds (100 signatures).
31 Elections Canada's post-event evaluations of the 37th general election revealed that half (50%) of the political party representatives surveyed were dissatisfied with the current verification process for candidates' nomination papers. When asked why they thought so, 21% reported that the requirement of signatures was somewhat difficult to meet. Candidates themselves expressed less dissatisfaction, with only 12% of respondents indicating that they were dissatisfied or very dissatisfied.
As stated by several members of the Advisory Committee of Political Parties during the 12th Session, the nomination process should not disenfranchise candidates from their constitutional right to run as a candidate in a federal election (Section 3 of the Canadian Charter of Rights and Freedoms).
32 Law Reform Commission of British Columbia, Report on Affidavits: Alternatives to Oaths, LRC 115, November 1990.
33 At the 13th Session of the Advisory Committee of Political Parties, a member recommended that political parties be allowed to submit the endorsed candidates' deposit fees with the Receiver General of Canada. The recommendation received support from a number of other party representatives.
34 At the 13th Session of the Advisory Committee of Political Parties, the majority of party representatives supported a recommendation allowing party leaders to file a list of endorsed candidates with the Chief Electoral Officer.
35 Section 24.2 of the Manitoba Elections Act only recently came into force, on January 1, 2001. Prior to January 2001, the provisions respecting candidates' leave from employment, an employers' ability to contest such leave, and the mechanisms to resolve disputes, did not exist.
36 See also the Parliament of Canada Act, R.S. 1985 c. P-1.
37 While the terminology may differ, the concept of political party registration is also found at the provincial level. In fact, all provinces and territories except for the Northwest Territories and Nunavut (which do not have political parties) require political parties to apply to the Chief Electoral Officer to obtain an official status under the electoral legislation.
All provinces and the Yukon Territory require political parties to have nominated a certain number of candidates in order to remain a registered party or to acquire registered status. This number ranges from 2 in British Columbia to 51 in Ontario.
This principle was recognized by the Ontario Court of Appeal in Figueroa v. Canada (A.G.) (leave to appeal to the SCC has been granted).
38 The federal government, in 1964, established the Barbeau Committee to study election expenses at the federal level. This followed the introduction, in 1963, of legislation in Quebec that provided spending limits and election expense reimbursements. The Pearson government did not take up the Barbeau report, tabled in 1966, but in 1970, Prime Minister Pierre Trudeau convened the Chappell Committee to review and expand the Barbeau report. Also in that year, the Canada Elections Act was amended to provide for the registration of political parties, a first step in the introduction of the election-financing regime in 1974.
39 Bill C-9 received royal assent on June 14, 2001, and came into force on October 1, 2001, when the Chief Electoral Officer published a notice in the Canada Gazette to that effect. The main objective of the bill was to address the Ontario Court of Appeal ruling in Figueroa v. Canada (Attorney General) respecting the identification of political affiliation of candidates on election ballots, as well as to make several technical and translation amendments to the Canada Elections Act.
40 Provincially, only British Columbia and Quebec regulate third parties (or election advertising sponsors and private intervenors, as they are called respectively). In British Columbia, election advertising sponsors are defined as individuals and organizations other than candidates, political parties, or registered constituency associations. In Quebec, an elector or group that does not have legal personality may apply as a private intervenor.
41 The most common practice across Canadian jurisdictions is to provide the preliminary list of electors to political parties and candidates. It is also common to provide candidates and political parties with a revised list after the revision process.
42 Members of the Advisory Committee of Political Parties expressed support for the distribution of the lists of electors to eligible parties and registered parties that have not run a candidate in an electoral district in the last election. The current scheme has been termed both unfair and undemocratic by some Members of Parliament and by some members of the Advisory Committee of Political Parties.
43 In Canada, all jurisdictions provide for tax credits for political contributions. In addition, all provinces except Alberta, British Columbia and the three territories provide for a partial reimbursement of candidates' election expenses. Quebec, Ontario, Manitoba and Saskatchewan also provide for a partial reimbursement of political parties' election expenses.
44 The Canada Elections Act does not provide for reimbursement of third parties election advertising.
45 At the 14th Session of the Advisory Committee of Political Parties, held on October 4, 2001, a majority of representatives were in favour of reducing the threshold for the reimbursement of candidates' election expenses to 5%.
According to Elections Canada's post-event evaluations of the 37th general election, 65% of candidates and 39% of political party representatives favoured the idea of a unique reimbursement formula for both candidates and political parties. It has been noted by 53% of the academic community surveyed through Elections Canada's post-event evaluations of the 37th general election that current reimbursement formulas favour bigger and richer parties and their candidates. However, 45% of all respondents thought that the current formulas are fair.
Moreover, 23% of the academic community surveyed suggested lowering the threshold for candidate reimbursement.
46 For more details on the 37th general election, see the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000.
47 While 15% of valid votes received is a standard threshold for candidate reimbursement in most Canadian jurisdictions, Manitoba requires both candidates and political parties to receive at least 10% of valid votes to be eligible for a partial reimbursement.
48 This section of the Income Tax Act has been in force since 1974, and was most recently amended in May 2000 by Bill C-2.
Six jurisdictions use the same tax credit scheme (for donations of more than $550, the credit is $300 + 33.33% of the amount over $550 or $500, whichever is less).
It should be noted that third parties are not authorized to issue income tax receipts for contributions.
49 The requirement for an auditor's report for election financing returns was first introduced in 1974.
50 Political party representatives also expressed the desire for changes in this area during the 14th Session of the Advisory Committee of Political Parties.
51 As section 85.1 was introduced with Bill C-2 in May 2000, this recommendation serves to address the unexpected anomaly created by the inclusion of that section.
52 During the 13th Session of the Advisory Committee of Political Parties, several party representatives recommended that auditors' fees be reviewed due to difficulties in hiring auditors willing to work for the present fee.
53 Members of the 14th Session of the Advisory Committee of Political Parties expressed unanimous support for such a recommendation.
54 Canada, Royal Commission on Electoral Reform and Party Financing: Final Report (1991) vol. 1, p. 375 and p. 381.
55 At the 13th Session of the Advisory Committee of Political Parties, some members expressed concerns with the current apportionment of broadcasting time, indicating that a more equitable broadcasting system should be established to better serve the electorate by providing electors information about all the choices available to them.
Elections Canada's post-event evaluation of the 37th general election, in surveying academics in the political field, showed that 71% of the respondents stated that the current apportionment scheme was still favouring the major parties. Among the political party representatives surveyed, 55% said that the allocation of free broadcasting time was not fair and 45% said that the allocation of paid broadcasting time was not fair.
56 The Broadcasting Arbitrator noted, in both 1997 and 1993, that the term "network" is no longer a sufficient ground for distinguishing between obligations of stations and station groups. (Report of the Chief Electoral Officer of Canada, 1993 and 1997).
57 No provinces or territories have regulations respecting the provision of broadcasting time during an election (although Quebec and New Brunswick allow broadcasters to provide voluntary time), and only four provinces regulate the rates charged for broadcasting. For instance, Newfoundland regulates the rates charged for broadcasting by requiring that broadcasters and publishers offer political parties and candidates the lowest rate offered to another party within the election broadcasting period, as well as outside the election broadcasting period [E.A., s. 226.2(2)].
The Royal Commission on Electoral Reform and Party Financing recommended that broadcasters be required to provide time to registered parties at half the rate they offered it to other advertisers in the same period (rec. 1.6.18).
58 The Royal Commission on Electoral Reform and Party Financing recommended that the free and paid time allocations should not be linked to one another. Instead, the Royal Commission recommended that network operators and specialty broadcasters be required, separately from paid-time provisions, to provide ten 30-minute free time broadcasts in prime time to be allocated to registered parties based on their percentage of the popular vote in the previous election, the number of candidates each party has nominated, and whether or not the party is represented in the House of Commons (recs. 1.6.22, 1.6.23, and 1.6.24).
59 The Royal Commission on Electoral Reform and Party Financing recommended, in 1992, that each broadcaster be required to make 360 minutes in prime time available for purchase by registered parties during a specified advertising period (11 days after the issue of the writs until midnight on the second day before election day), up to a maximum of 100 minutes purchased by a registered party from any broadcaster (rec. 1.6.16).
60 This recommendation builds on a recommendation presented in 1996, which proposed that a "nil return" be submitted by all candidates who did not incur any personal expenses.
61 These provisions were first introduced into the Canada Elections Act in 1998 by Bill C-411.
62 The issue of filing deadlines was raised at several sessions of the Advisory Committee of Political Parties, especially with respect to the experience of the November 2000 federal general election. Following the election, there was a high number of applications for extensions. For the 37th general election, over 100 extensions had been granted, despite reminders of the filing deadlines from Elections Canada to all official agents on several occasions.
63 New Brunswick, Quebec, Ontario, Manitoba, Alberta, the Northwest Territories and Nunavut limit the amount of allowable contributions annually. Alberta allows up to $15 000 per year to a political party, plus up to $30 000 during an election campaign. Two provinces limit annual contributions to $3 000: to each political party, independent member or independent candidate, in the case of Quebec, and to each political party, candidate or constituency association, in the case of Manitoba. The limit applies regardless of whether there is an election or not.
64 The ability of the Commissioner of Canada Elections to enter into compliance agreements and injunctions was introduced with Bill C-2 in May, 2001. Prior to that, although the Commissioner could seek an injunction, it was not specified in the Canada Elections Act. Also, the Commissioner had to prove "irreparable harm" in order to obtain an injunction, which was difficult in the midst of an election campaign. There were no provisions for compliance agreements prior to Bill C-2. In Strengthening the Foundation, 1996, the Chief Electoral Officer recommended that the Commissioner be empowered to enter into compliance agreements and to issue compliance orders (rec. 121).
The Royal Commission on Electoral Reform and Party Financing recommended that an Electoral Commission be constituted as an administrative tribunal to adjudicate infractions under the Act, and that it be empowered to issue mandatory injunctions and cease and desist orders where required (rec. 1.7.29).
65 During appearances before the Standing Committee on Procedure and House Affairs on March 1, 2001, members indicated to the Chief Electoral Officer their desire to see the Commissioner of Canada Elections resolve breaches of the Canada Elections Act in a more timely and efficient manner.
66 The provision allowing the appointment of returning officers by the Chief Electoral Officer in Manitoba only came into effect in January 2001, after significant amendments were made to the Manitoba Elections Act. However, the Chief Electoral Officer of Manitoba recommended such a change as early as 1995, in his report to the Legislative Assembly following the April 1995 provincial general election.
In both British Columbia and Yukon, assistant returning officers are appointed by the Chief Electoral Officer.
67 Generally, provincial and territorial electoral legislation allows the Chief Electoral Officer to hire such staff as may be required. In eight jurisdictions, these staff include a Deputy or Assistant Chief Electoral Officer hired at the discretion of the Chief Electoral Officer.
68 Only Quebec and Ontario require the returning officer to solicit the names for deputy returning officers and poll clerks from candidates of registered political parties. In all other cases (except for Prince Edward Island, which requires deputy returning officers to come from party lists), deputy returning officer and poll clerks are appointed at the discretion of the returning officer or (in the case of poll clerks) the deputy returning officer.
69 This recommendation builds on and extends a previous recommendation made in the 1996 Annex, Strengthening the Foundation, in which it is recommended that political parties be provided only one opportunity to provide names of potential deputy returning officers and poll clerks to returning officers (rec. 106).
70 A provision respecting the leave of absence for candidates already exists in the Act (sec. 80), requiring all employers under Part III of the Canada Labour Code to grant leave, with or without pay, to employees who wish to seek elected office. Similarly, the Act requires all employers to provide three consecutive hours on election day to all voters for the purpose of casting their ballots [sec. 132(1)].
71 Part 2.1 (sections 24.2 to 24.4) of the Manitoba Elections Act came into force in January 2001.
72 For more details on the 37th general election, see the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000.
73 The issue of tariff of fees was raised by the Standing Committee on Procedure and House Affairs (on May 17, 2001), as well as by the Advisory Committee of Political Parties (February 9, 2001). In both instances, it was suggested that Elections Canada undertake to review and revise the tariff of fees.
74 The 2000 Canadian Election Study highlighted the fact that 94% of electors think that the public has the right to know from whom and from where political parties and candidates get their campaign funds.
75 The provision requiring financial returns for trust funds established by registered political parties for electoral purposes was first introduced in Bill C-2, in May 2000.
76 According to the Elections Canada post-event evaluation of the 37th general election, most of the candidates, political party representatives and academics surveyed agreed that local associations' expenditures and contributions should be reported.
77 William Stanbury called the unregulated finances of local associations a "black hole" in the Canadian election financing regime (Money in Politics: Financing Federal Parties and Candidates in Canada, RCERPF Research Studies 1992, volume 1, p. 375).
Across Canada, six jurisdictions (Nova Scotia, New Brunswick, Quebec, Ontario, Alberta and British Columbia) require local associations to register with the Chief Electoral Officer for the jurisdiction. Five of these provinces also require an annual financial return from local associations (all but Quebec). In Manitoba, all local associations must submit a financial return annually, although local associations are not required to register.
The Royal Commission on Electoral Reform and Party Financing recommended a more stringent system that would have required all constituency associations of political parties to register with the Chief Electoral Officer, and to present the Chief Electoral Officer with a copy of the association's constitution as a requirement of registration (RCERPF, volume 1, recommendations 1.5.5 and 1.5.6).
At the 14th Session of the Advisory Committee of Political Parties, a majority of representatives expressed support for disclosure of the financial activities of political parties' local associations.
78 As noted earlier, most academics surveyed following the 37th federal general election indicated support for disclosure of candidates' nomination expenses. In addition, 78% of candidates surveyed indicated that they agreed or strongly agreed that disclosure requirements should be extended to nomination campaigns.
79 Such a recommendation was made by the Royal Commission on Electoral Reform and Party Financing in 1992, (rec. 1.7.2 (b)).
Currently, at the provincial and territorial level in Canada, no jurisdiction requires the disclosure of candidates' finances for nomination campaigns.
During the 14th Session of the Advisory Committee of Political Parties, the idea of disclosing the financial transactions of candidate's nomination campaigns was positively endorsed by a majority of representatives.
80 According to the Elections Canada post-event evaluation of the 37th general election, most of the candidates, political party representatives and academics surveyed agreed that expenditures and contributions to leadership contestants should be regulated.
Currently, only Ontario and British Columbia regulate the financing of leadership contestants. In Ontario, leadership contestants must register with the Chief Electoral Officer, and must submit a report on their leadership campaign finances. In British Columbia, only a financial report is required.
At the 14th Session of the Advisory Committee of Political Parties, representatives from political parties indicated strong support for disclosure of party leadership campaign finances.
81 Specifically, it was recommended in Strengthening the Foundation that a registered agent be appointed for each leadership contestant, who would be responsible for all financial transactions and for submitting a financial report to the Chief Electoral Officer and the chief agent of the registered political party (rec. 56).