Completing the Cycle of Electoral Reforms – Recommendations from the Chief Electoral Officer of Canada on the 38th General Election
1.3 Expansion of the Statutory Budgetary Authorization
As a corollary amendment, provision should be made to enhance the review function of the Auditor General as it applies to the operations of Elections Canada. The practice of the Chief Electoral Officer of reporting annually on the use of the statutory payment authority and of appearing before a House of Commons Committee to be examined thereon could also be statutorily codified.
Currently, the funding for the operation of the Office of the Chief Electoral Officer of Canada comes from two sources: pre-authorized statutory draws upon the Consolidated Revenue Fund and an annual appropriation vote.
The authority contained in the Act for draws upon the Consolidated Revenue Fund provides for the payment of all of the expenses relating to the operation of the Act, apart from the regular salaries of permanent staff.
The statutory authority to draw directly upon the Consolidated Revenue Fund serves two important purposes: permitting elections to be conducted effectively and efficiently, and maintaining the integrity of the electoral process. The various functions and duties related to the delivery of elections could not be performed in an effective, efficient, independent and impartial manner without a statutory draw. Because the timing of elections is not known in advance, annual appropriation votes are not suitable financing vehicles. It is also imperative for the conduct of an effective, fair and impartial electoral process that funding be insulated from executive control or political agendas.
Elections Canada's only expense outside of the statutory draw is the payment of the regular salaries of its permanent employees (overtime is provided for by a statutory draw). An annual appropriation is required for these salaries.
As the Chief Electoral Officer observed in his February 15, 2005, statement to the Standing Committee on Access, Privacy and Ethics, when the Office was first created in 1920, it consisted only of one chief clerk and two stenographers. The 1920 statute expressly directed that, apart from these three staff members, there were to be no permanent officers or employees paid to perform any duties in connection with elections. The delivery of elections was the principal responsibility of appointed returning officers and associated staff – all of whom were, and continue to be, paid under the statutory authority for payment contained in the Act.
Thus, the Office of the Chief Electoral Officer was created with no statutory provision for the payment of the permanent staff,4 precisely because those officers were not involved in the effective delivery of elections or related functions – unlike today. The effective and impartial delivery of elections was ensured through the provision of a statutory draw.
As the Chief Electoral Officer also indicated in his February 15, 2005, statement, the legislative duties of his Office have evolved significantly over the past century: today's elections are no longer simple, stand-alone affairs, existing wholly within the parameters of an election period. The modern election could not be effectively or efficiently performed without professionals, experts and permanent staff and the use of automated technologies. Activities such as the maintenance of the National Register of Electors, the registry of political parties and of electoral district associations, the disclosure rules and political financing functions are not only significant, they are essential aspects of the electoral process and are not restricted in their operation or effect to the 36-day election period. Should the Act be amended as recommended in section 1.1 of this document to implement an advanced, centralized and administrative confirmation process, the ratio of electoral activities outside election periods will increase even more.
At the same time as electoral duties have become a more important, ongoing function of the organization – rather than being directed purely toward electoral events – human resources management in the federal government has diminished the ability to hire staff on a longer term basis other than indeterminate status. The historical reason for not including the salaries of the indeterminate employees of the Office of the Chief Electoral Officer in the statutory authorization has long ceased to exist. And, while electoral duties have necessarily come to dominate the functions of permanent staff, the historic source of funding for that staff has not been corrected to reflect this significant shift in responsibility.
The operation of the current appropriation process for the funding of officers of Parliament has recently been questioned by the Standing Committee on Access to Information, Privacy and Ethics5 – particularly in the context of those officers who perform an ombudsman or review role related to government action:
There is no doubt that the current budget determination process for the funding of Officers of Parliament raises serious concerns. The Committee feels that the status quo is unacceptable. At the very least, it raises the perception that the critical functions of these Officers could be impeded by budgetary restrictions imposed by the very body whose actions they are charged with scrutinizing.6
In response to those concerns, the Committee recommended that a parliamentary body should replace Treasury Board in its role of determining the budget required for all officers of Parliament including, with respect to its appropriation vote, the Office of the Chief Electoral Officer. The comments made by the Committee indicate that Parliament's original concerns about the delivery of elections are as valid today as they were some 85 years ago, when Parliament elected to ensure that the delivery of elections was not subject to improper influence, or the perception of influence, from any source – including Parliament.
It is important to note that funding the electoral process through the statutory draw does not dispense with the right, and authority, of Parliament to be kept advised of those electoral expenses and to intervene where appropriate.
The extensive detail of the Act itself materially directs the extent and direction of operations in the delivery of an election. Furthermore, significant review and report mechanisms for these operations already exist.
Thus, the Office of the Chief Electoral Officer is subject to audit by the Auditor General of Canada. Parliament is also kept closely apprised of projected expenditures to be funded under the statutory draw. Projected expenses are forwarded for the attention of Parliament in the Main or Supplementary Estimates, through the Minister designated under the Financial Administration Act, then to Treasury Board, before being consolidated and presented to Parliament – even though no appropriation is actually needed for those expenditures. This process provides significant opportunity for challenge and accountability. The Chief Electoral Officer also appears regularly before the House of Commons Committee on Procedure and House Affairs, as well as before other responsible Parliamentary committees, to account for and explain these estimates. Finally, as part of this accountability process, Part III of the Estimates, the Report on Plans and Priorities, provides Parliament with a written account of the Chief Electoral Officer's plans, on which he is closely scrutinized. The companion document, the Departmental Performance Report, provides an assessment of the performance and results achieved by the Office as measured against the plans and budget previously reported to Parliament.
In the event that the financial authorities for the delivery of elections are updated and brought back in line with the original vision of Parliament, the existing review and report mechanisms should be updated likewise. The number and type of audits the Auditor General makes of Elections Canada accounts and activities should be increased and funded from the statutory draw. Similarly, the Chief Electoral Officer's practice of reporting annually on the use of the statutory payment authority and of appearing before a House of Commons Committee to be examined thereon should be statutorily codified.
1.4 Extension of the Adaptation Power
The period during which the Chief Electoral Officer is authorized to adapt the Canada Elections Act under section 17 for emergencies or unusual or unforeseen circumstances should be extended from the current period of the election to 90 days past the return of the writ.
Section 17 currently provides the authority to the Chief Electoral Officer to adapt the provisions of the Act (with a few noted exceptions) during an election period if an emergency, an unusual or unforeseen circumstance or an error makes it necessary. The highly prescriptive nature of the Act, coupled with the singularity of each electoral event, which cannot easily be delayed or reviewed, makes such an authority invaluable. This power is used, under a variety of circumstances, in every election. In the 38th general election, a number of adaptations were made, including the following:
- to provide for the use of photocopied ballot forms in ridings where the supply of pre-printed ballots was insufficient on polling day and could not be replenished in time
- to address the issue of a central polling place being established in error outside of an electoral district
- to extend to inmates in federal correctional institutions the voting process currently applicable to inmates in provincial institutions
- to extend the period for voting by special ballot for certain military personnel who were in removed or inaccessible locations
- to provide for the issuance of transfer certificates to electors who were erroneously advised to vote at the wrong polling station
The adaptation power in section 17, however, is limited to the election period only: the period beginning with the issue of the writ and ending on polling day or on the day a writ is withdrawn.
The difficulty with this limitation is that the election process does not end with polling day. The validation of the vote, for example, a vital part of the election, takes place after polling day. Emergencies, unusual or unforeseen events, or errors in these events can have equally serious consequences for an election. And, in the same way that it is not possible for Parliament to deal with these situations during an election, it is not feasible for Parliament to take practical action to deal with election-related concerns that arise immediately after an election.
Furthermore, circumstances arising during an election may call for corrective adaptation to a date outside of the election period. For example, registered parties and electoral district associations may find that the deadline for the filing of their fiscal returns under the Act falls in the midst of an election period. In this case, an adaptation of the Act would be effective only to permit a delay in that filing deadline up to polling day – which is not an effective response.
For this reason, this report recommends that section 17 of the Actbe amended to extend the temporal limitation on adaptations of the Act to a date beyond polling day.
Insofar as the Chief Electoral Officer is required to report on all adaptations made in a general election in his report made to Parliament under subsection 534(1) within 90 days of the date of the return of the writs, it is recommended that this be the extended period for which the Chief Electoral Officer be authorized to adapt the Act. This will set a specific end date for the exercise of the power; the resulting period will cover all of the stages of the election conducted by election officials, and will ensure that information about adaptations are provided to Parliament in a timely fashion in the statutory report to Parliament on the election.
1.5 Appointment of the Chief Electoral Officer
Consideration should be given to the Senate having a role in the appointment of the Chief Electoral Officer.
Since the creation of the Office in 1920, the Chief Electoral Officer has been appointed by resolution of the House of Commons.7 The Senate has been accorded no role in that appointment process. Once appointed, the Chief Electoral Officer serves until age 65. Early termination of office is possible only by death, resignation, or removal for cause by the Governor General on address of the Senate and House of Commons.
The tenure and term of the Chief Electoral Officer are intended to support the independence of the Office from political influence, as is the appointment by resolution of the House of Commons – rather than by the Governor in Council.
Appointment by resolution of the House also serves to reflect the particular interest of the House in the officer who will administer the process through which members of the House are elected. This is not primarily a personal interest, however. It reflects the public interest by ensuring the objective and expert delivery of elections for the creation of the lower House of the legislative branch of the state.
Members of the Senate have suggested that this interest is not unique to the House of Commons. It is also shared by the Senate. This interest is similar to the constitutionally mandated interest of the Senate in legislation respecting electoral matters, and its interest in the various reports made by the Chief Electoral Officer to the Speaker of the House under the statutes he administers. The Chief Electoral Officer is often requested to appear before the Senate to respond to questions.
For that reason, it has been suggested by members of the Senate that, to the extent that the Senate is seen as having a role in the termination of the term of the Chief Electoral Officer, it has a role in the appointment of that officer. These arguments have merit, and consideration should therefore be given to the idea of the Senate having a role in the appointment. This would also reflect the representative nature of that house of Parliament and its interest in a key element of the formation of Parliament.
1.6 The Office of Assistant Chief Electoral Officer
The statutory office of Assistant Chief Electoral Officer should be removed from the Canada Elections Act.
The 2001 report of the Chief Electoral Officer, Modernizing the Electoral Process, recommended the repeal of the statutory office of Assistant Chief Electoral Officer on the grounds that the office served no statutory function, was subject to concerns about its independence from the executive, operated as a serious impairment of the democratic rights of any holder of that office, and was an anachronistic holdover from an early version of the Office of the Chief Electoral Officer. That recommendation is repeated here.
The statutory office of Assistant Chief Electoral Officer was created in 1920 at the same time as the Office of the Chief Electoral Officer. At that time, the entire staff of the Office consisted of only the Assistant Chief Electoral Officer (who held the rank of Chief Clerk) and two stenographers. Both the Assistant and the two stenographers were to be appointed by the Governor in Council, according to the practice of the day.
In 1948, concerns by the Chief Electoral Officer that two stenographers were insufficient for his needs led to amendments to the staffing provisions of the Act, to provide that the Office would consist of the Assistant Chief Electoral Officer "and such other officers, clerks, and employees" as the Governor in Council might appoint. The focus on the staff of the office, other than the Assistant Chief Electoral Officer, continued in 1951, when the staffing provisions of the Act were amended again to provide for the appointment of the "other officers, clerks, and employees" as may be required; they were to be appointed "according to law" – at that time, through the Civil Service Commission. This was a purely functional amendment for efficiency, based on a request from the Chief Electoral Officer in recognition of his de facto use of the Commission to find staff.8 The appointment of the Assistant Chief Electoral Officer was not discussed at that time and the issue has not been reviewed since.
The Act does not provide for the Assistant Chief Electoral Officer to serve as the deputy of the Chief Electoral Officer. Nor does that officer stand in for the Chief Electoral Officer in the event that the Chief Electoral Officer is unable to perform his or her duties. In the case of death or incapacity of the Chief Electoral Officer, the House of Commons must appoint a successor (section 14 of the Act provides for the appointment of a substitute Chief Electoral Officer through the judiciary if Parliament is not sitting at the time of the Chief Electoral Officer's death or incapacity).
The Assistant Chief Electoral Officer served in the role of a senior officer of Elections Canada – one of several – and performed such duties as assigned by the Chief Electoral Officer. Since its creation in 1920, the Office of the Chief Electoral Officer has expanded in mandate and in operational demands far beyond its original concept as a simple three-person office. The Chief Electoral Officer now presides over a complex, modern organization with continuing national obligations and international involvement, and extensive demands for expertise in many fields, such as finance, law, geography, computer technology and public administration. Many of Elections Canada's senior officers perform roles that are equally important to the operation of Elections Canada as those performed in the past by Assistant Chief Electoral Officers, and 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 all others. The evolution of the mandate and structure of the Office of the Chief Electoral Officer of Canada has not been reflected by a similar evolution in the statutory concept of the Assistant Chief Electoral Officer that would integrate that office into modern reality. The office has been vacant since 2001.
Insofar as the Assistant Chief Electoral Officer serves no particular statutory mandate, there is 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 undermines 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 historical in origin rather than purposive.
The current statutory concept of the office of Assistant Chief Electoral Officer remains rooted in historical anachronism and fails to reflect the actual lack of any specific role for that office. As a result, not only are there important concerns about the independence of that office; the holder of that office also suffers a serious impairment of his or her constitutional democratic rights.
Section 4 of the Act provides that the Assistant Chief Electoral Officer is not entitled to vote in an election. 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. In fact, the roles performed in the past by Assistant Chief Electoral Officers are now performed by a number of different directorates within Elections Canada. The loss of the right to vote is an important intrusion upon the constitutional democratic rights of the holder of the office of Assistant Chief Electoral Officer.
For these reasons, the Act should be amended to remove the statutory office of Assistant Chief Electoral Officer.
1.7 Appointment of Revising Agents
Section 33 of the Canada Elections Act should be amended to remove the requirement that returning officers solicit names from registered parties in the hiring of revising agents.
Revising agents assist returning and assistant returning officers in the registration of electors during the revision period of an election. The 2001 report Modernizing the Electoral Process detailed the burden on the electoral process resulting from the prohibition on returning officers from hiring persons to act as revising agents until they have first solicited names of persons from the registered parties whose candidates finished first and second in the previous election in that electoral district. The returning officer hires outside of the recommendations of the two parties only if the two parties fail to provide sufficient names within three days after receiving a request from the returning officer. As noted in the 2001 report, this has a number of consequences.
First, the time frame for consultation with the two registered parties creates a delay in the selection and training of revising agents.
Second, as a result of the political nature of the source of the pool of revising agents, the Act requires that revising agents work in pairs; this serves as an internal check on partisan bias. However, this imposes further burdens on the process by doubling the number needed to staff the positions of revising agent – a doubling not only in the number of people required, but also in salaries, expenses and training.
Third, there appears to be little justification today in requiring Canadians seeking to participate in the electoral process as revising agents to apply through the medium of the two registered parties which came first and second in the last election in the district.
For these reasons, the recommendation made earlier in Modernizing the Electoral Process is repeated here. Section 33 of the Act should be amended to remove the requirement for returning officers to solicit names from registered parties in the hiring of revising agents.
If this recommendation is adopted, the current requirement that revising agents work in pairs should be removed.
1.8 The Right of Elections Canada Staff to Strike
Employees of the Chief Electoral Officer should not have the right to strike.
In the 2001 report, Modernizing the Electoral Process, the recommendation was made that the Public Service Staff Relations Act be amended to remove the right to strike from employees of Elections Canada. This recommendation was based on the fact that any labour interruption in the operations of Elections Canada made it impossible either for the Chief Electoral Officer to be election ready or to perform his or her functions under the Canada Elections Act during an election. It was argued in that recommendation that neither the authority of Parliament to legislate an end to strikes, nor the ability of the Governor in Council to defer strike action during a general election, nor the designation of positions as positions necessary to preserve the safety or security of the public adequately addressed the need of the Chief Electoral Officer to be election ready or to deliver an election. These arguments are repeated here, followed by an assessment of the implications of the new applicable rules under the Public Service Labour Relations Act:
Normally, Parliament can legislate a return to work if necessary, though this is not an option when Parliament has been dissolved for a general election.
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, including 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 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 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 unions. And, while this action 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 report of the Chief Electoral Officer entitled Canada's Electoral System: Strengthening the Foundation, other jurisdictions, including British Columbia, Manitoba, Ontario and Quebec, prohibit employees of their election agencies from striking.
As a result of the enactment of the Public Service Modernization Act, the Public Service Labour Relations Act now governs labour relations for federal public servants. Under that Act, the above-described options respecting strikes continue in their existing or similar form. Parliament continues to have the authority to legislatively end strike action. The Governor in Council continues to have the authority to defer strike action during a general election (s. 197), and persons in positions identified in essential-services agreements remain unable to strike. The last option is similar to the former option of designated positions. However, as these options operate in a way similar to the earlier options under the Public Service Staff Relations Act, they continue not to address the concerns raised in the 2001 report about the employees of Elections Canada.
The Public Service Labour Relations Act also provides in Division 9 (sections 135 and following) a process for the resolution of disputes through arbitration. Persons in bargaining units for which the process for resolution of a dispute is arbitration are prohibited from participating in a strike under paragraph 196(e) of the new Public Service Labour Relations Act.
To bring Elections Canada under Division 9 of the Public Service Labour Relations Act would require removing the employees of Elections Canada from their existing bargaining units and creating separate bargaining units for them. This is unlikely to be practicable.
For this reason, the earlier recommendation contained in Modernizing the Electoral Process is repeated here.
1.9 Hiring and Payment of Temporary Elections Canada Staff Hired Directly for Preparation and Conduct of Elections
Section 20 of the Canada Elections Act deals with the authority of the Chief Electoral Officer to hire additional employees and workers. It should be divided into two subsections: one subsection would deal with the additional individuals that the Chief Electoral Officer considers necessary for the direct preparation for, conduct of and reporting on an election; the second subsection would deal with other additional individuals needed for the exercise of the Chief Electoral Officer's powers, duties and functions under the Act
The workers required specifically for the direct preparation for, conduct of and reporting on an election would be employed by the Chief Electoral Officer on a casual or temporary basis outside the scope of the Public Service Employment Act,which restricts the length of time for which such workers may be hired to between 90 and 125 days. The proposed approach is the same as that applicable to election officers under the Canada Elections Act.
The Chief Electoral Officer would retain the current authority to hire, on a casual or temporary basis, other additional persons considered necessary for the exercise of his or her powers, duties and functions under the Canada Elections Act, but the hiring of these individuals would remain subject to the applicable provisions of the Public Service Employment Act.
Section 542 should be amended to allow for the payment, under the existing Federal Elections Fees Tariff, of fees to workers hired by the Chief Electoral Officer for the direct preparation for and conduct of an election.
During elections, the Chief Electoral Officer needs to increase the complement of employees significantly to ensure the smooth running of the election, provide assistance to the public and to candidates, and properly support returning officers and their election personnel in 308 electoral districts.9 Various people with diverse qualifications are required in the few months leading to the time at which the Chief Electoral Officer "expects" the writ to be issued, during the election period itself, and for some months after the election, to assist the permanent staff in delivering and reporting on the electoral event.
Among the people hired to provide support to the organization itself, and technical assistance to returning officers, are provincial government employees, past federal returning officers, past assistant returning officers, past or current provincial returning officers and other senior provincial election officers. These individuals bring with them an invaluable pool of electoral knowledge; hence the requirement for flexibility to attract them and pay them, while retaining them for a relatively short period of time. Elections Canada must also hire other individuals during the election to support the organization in tasks that require less-specialized knowledge.
In 2004, as in previous elections, casual workers were hired under the terms of the Public Service Employment Act.10 This approach creates a significant strain on the organization, which must nearly double its personnel to run the election, with no advance notice of the date of the election call. The strain relates to the intake of new employees, but also extends to the need to train these new and temporary employees, to put them on pay rapidly, then to stop paying them and process termination of their contracts, all in a period during which the organization is already operating at full capacity and maximum intensity. The most significant problem, however, relates to the length of time for which these individuals may be hired.
Subsection 21.2(2) of the current Public Service Employment Act provides that casual employees may not work for any particular organization for more than 125 days in any 12-month period.
The rules governing the period over which casual workers may work for any particular organization will be changed with the coming into force of the new Public Service Employment Act11 in December 2005, at which point this 125-day period will be reduced to 90 days per calendar year.12 Elections Canada would need to be able to retain these individuals for up to 175 days of work per election. The reduction of the number of days for which casual workers may be hired pursuant to the new Public Service Employment Act will make it more difficult for the Chief Electoral Officer to deliver elections efficiently and to meet all his or her legal obligations related to the conduct of elections.
The time limitations for the hiring of casual workers in both the new and current statutes create particular difficulties for Elections Canada in the casual hiring of the many individuals who are knowledgeable about elections, who made up about 50 of the approximately 300 casual workers hired for the 2004 election.13
For example, a decision may be made to call in the casual workers at a time when an election appears a near certainty in a matter of days; the situation may change, and no election is called. While the casual workers' employment would be terminated as soon as possible once it becomes clear that the election would not occur, the time spent by them working for the organization while gearing up to what turned out to be a false alarm reduces the time during which they can work, if the writs are eventually issued during the same calendar year. Similarly, if a number of by-elections are called during a year, the number of days spent working for Elections Canada by each worker for each by-election has an effect on the length of time for which a knowledgeable individual may be able to assist the organization if a general election is subsequently called.
These problems could be resolved by authorizing the Chief Electoral Officer to hire the workers required for the direct preparation for and the conduct of an election on a temporary basis. A limit on the duration of any such hirings could be imposed, and the Chief Electoral Officer would be expected to demonstrate, at the end of the year, that such employees were hired to work directly on the preparation of an election and/or its conduct.
The payment of salaries to these workers should also be addressed. The Public Works and Government Services Canada Regional Pay System, used for the payment of the salaries of public servants, does not lend itself easily to this sudden influx of a high number of new workers who rightly expect to be paid in a period relatively concurrent with the term of their employment.
This report proposes that the Act be amended to allow for the payment of fees to these workers under the Federal Elections Fees Tariff already established under the authority of section 542 of the Act for the payment of fees to election officers. The tariff of fees could also provide for the payment of relocation expenses, such as lodging, meals, incidentals and travel expenses, to these individuals, in accordance with Treasury Board guidelines.
It is worth noting that this proposed arrangement is the one already applicable for election officers, as this term is defined in section 22 of the Canada Elections Act.
1.10 Greater Flexibility in the Establishment of Advance Polling Stations
It should be possible to establish an advance poll for a single polling division rather than requiring that the advance poll must be for two or more divisions.
Currently, an advance polling district must cover two or more polling divisions (s. 168). This can make accessing these advance polling stations difficult for electors when the polling divisions in question are already geographically substantial or remote. In those cases, it would be preferable if an advance poll could be created for that one polling division rather than requiring that it be combined with another. The greater number of electors relying on advance polls to vote provides a further justification for more discretion on this matter.14
1.11 Transfer Certificates and Accessibility
Section 159 of the Canada Elections Act should be amended to remove any time limit for application for a transfer certificate in the event that a polling station lacks level access.
The 2001 report Modernizing the Electoral Process recommended that the deadline by which an elector with a physical disability might apply for a transfer certificate to vote at a polling station with level access be eliminated. That recommendation is repeated here.
Every effort is made to ensure that all polling stations provide level access. However, the limited time frames of an election and problems of space availability sometime result in less than optimal locations for polling stations. Nevertheless, in the 2004 general election, only 45 (0.2 percent) of the 18,807 polling stations lacked level access. This compares with 0.5 percent that lacked level access in the 2000 general election.15
Section 159 of the Act provides that an elector with a physical disability who cannot vote without difficulty in his or her assigned polling station 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 before 10:00 p.m. of the Friday immediately before polling day.
This deadline undermines the purpose of section 159 because many electors are not aware, until they arrive on polling day, that the polling station to which they have been assigned does not have 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 polling station originally assigned to the voter. 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, which is of questionable value when compared to the importance of the right to vote. 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. For example, transfer certificates are available under section 158 of the Act to candidates and to persons who have been appointed after the last day of advance polls to serve as election officers for polling stations other than their own. The Act imposes no time limit for those certificates.
4 Under the Dominion Elections Act of 1920 (S.C. 1920, c. 46), the statutory duties of the Chief Electoral Officer consisted of the following:
Throughout every election properly direct all returning officers and, in case of incompetency or neglect of duty on the party of any of them, recommend his removal and the appointment of another in his stead; exercise general direction and supervision over the administrative conduct of elections with a view to ensuring the fairness and impartiality of all election officers and compliance with the provisions of this Act; report to the House of Commons after any election; subject to the performance of the foregoing duties, act as counsel for the Crown or the Attorney General in such causes, prepare such opinions, and make such enquiries as the Governor in Council may from time to time direct.
1. addressed writs and received return
2. provided ballot boxes or instructions necessary to ensure uniform size
3. provided paper for ballots
4. stored election papers after election
5. participated as mediator in disputes between Auditor General and election officers for payments of election-expense accounts
6. assisted in the preparation of the tariff of fees for the payment of election officers
5 See the report entitled A new process for funding officers of Parliament tabled by the Committee on May 5, 2005, and more particularly, its first recommendation.
6 Idem, p. 21.
7 Section 13 of the Canada Elections Act.
8 The issue of staffing and appointment had come up earlier in 1947, when the Chief Electoral Officer was requesting an expansion in the number of his staff. The focus of that discussion was not on the Assistant Chief Electoral Officer, but on other staff. In 1947, the suggestion was made for an increase in staff, who would also be appointed through the Civil Service Commission. The Chief Electoral Officer at that time, Mr. Jules Castonguay, expressed a preference for the appointment authority to remain unchanged insofar as the Chief Electoral Officer felt that the provision had been in force for 27 years at that time and that it had worked satisfactorily during that period (see the Minutes of Proceedings of the Special Committee on Dominion Elections 1938 for June 5, 1947). Approximately three years later, a different Chief Electoral Officer believed that it would be more efficient for the Civil Service Commission to handle the appointments of staff. In the Minutes of Proceedings of the Standing Committee on Dominion Elections Act 1938 for June 15, 1950, the following exchange took place between Mr. Nelson Castonguay, the Chief Electoral Officer (appearing as a witness), and the Committee:
"The Witness: I have something to mention there.
I would like to suggest to the committee that they agree to bring my staff under the Civil Service Commission. The present procedure for the appointment of a permanent employee is that I make a recommendation to the Secretary of State, the Secretary of State forwards the recommendation to the Governor in Council, the Governor in Council refers it to the Treasury Board, the Treasury Board refers it to the Treasury Board, the Treasury Board refers it to the Civil Service Commission and the Civil Service Commission consults me to see if the position is required, and secondly, if the employee is qualified. The procedure I am following now, when there is a vacancy on the staff, is to seek the assistance of the Civil Service Commission in filling the vacancy. This is merely a suggestion that would be acceptable not only from the point of view of the permanent staff but also from the point of view of the temporary staff. In the last election we had a new responsibility inasmuch as we had the taxation of election accounts. I have a small permanent staff. During the election we hire up to about sixty temporary employees, and these employees are dismissed after the general election. For efficiency of the office, and if the committee is agreeable, I would be more comfortable if the staff of the Chief Electoral Office came under the Civil Service Commission."
9 In his report on the administration of the 38th general election, the Chief Electoral Officer indicated that in Ottawa, the number of Elections Canada employees had nearly doubled to approximately 600, almost overnight (p. 35).
10 R.S.C., c. P-33.
11 Enacted as s. 12 of the Public Service Modernization Act, S.C. 2004, c. 22.
12 Section 50 of the new statute.
13 Whenever it seeks the assistance of these experts, Elections Canada must also seek from the Treasury Board an exemption from the application of its Travel Directive to pay for the transportation and lodging costs of these individuals. As casual workers, the cost of their move to Ottawa and living expenses while working in the city are not authorized by the policy.
14 Advance poll voting rose from 750,000 voters in 2000 to 1,250,000 in 2004.
15 Pursuant to s. 121(2), a returning officer may, with the approval of the Chief Electoral Officer, locate a polling station in premises without level access, if suitable premises with level access cannot be found.