Completing the Cycle of Electoral Reforms – Recommendations from the Chief Electoral Officer of Canada on the 38th General Election

Chapter 2 – Registration of Electors

Introduction

Following the passage of Bill C-63 in December 1996, the National Register of Electors was established in April 1997, fundamentally changing the means by which Canadians register to vote in federal elections. The traditional practice of compiling new voter lists through door-to-door enumeration at the start of each election was replaced with permanent voter lists, which are updated between elections using administrative data sources and, during elections, by electors themselves.

Since that time, much has been accomplished:

• The Register has been successfully used in three national elections, most recently in 2004.
   
• Register data-quality targets and projected savings have been consistently exceeded.
   
• Each year, some 84 percent of the individuals who file income tax returns consent to the transfer of their names, addresses and dates of birth, to update their information in the Register – a clear indication of how successful the program is with the Canadian electorate.
   
• Register information has been shared with a number of provinces, territories and municipalities, with consequent cost savings to the public and increased inter-jurisdictional co-operation.
   
• Lists of electors have been provided annually to members of Parliament and political parties, as prescribed by the statute.

It is time to build on the experience gained by all stakeholders in order to continue to improve voter registration. Elections Canada has recently launched a strategic review of voter registration, involving consultations with all stakeholders, to focus on what works well, what should be improved, and how stakeholders can work together with Elections Canada to better serve Canadian electors. While this longer term initiative will most likely result in proposals for legislative change, a number of recommendations for improvement have already been identified and are presented here as amendment to the voter registration process, a process that has not been modified in any substantial way since the establishment of the Register.

The first group of recommendations (2.1 to 2.9) focuses on making it easier for electors to register to vote between elections and to revise their information during elections. These recommendations include an extension of electors' ability to request changes by telephone, and facilitate the addition of new electors, especially youth, to the Register by expanding the use of data from the Canada Revenue Agency.

The second group of recommendations (2.10 to 2.16) is aimed at allowing members of Parliament, candidates and political parties to make better use of the information contained in the Register, always with the understanding that electors are better served when all stakeholders have the most accurate and up-to-date voter lists. These recommendations include more frequent provision of lists and changes to permit the parties to better manage voter data.

The third group of recommendations (2.17 to 2.21) is aimed at improving the registration process by recognizing and building on the key role that returning officers play in voter registration, especially between elections, and by further strengthening cooperation with provincial and territorial electoral agencies.

The final recommendation (2.22) includes measures to strengthen the integrity of the process by expanding the ability to verify elector eligibility at the polls.

2.1 Registration Through Income Tax Returns

Under section 49 of the Canada Elections Act, to register with the National Register of Electors outside of an election period, electors must communicate that wish to the Chief Electoral Officer and satisfy him or her that they are Canadian citizens of at least 18 years of age. To this end, the capacity of electors to register with the National Register of Electors through their income tax returns has been a central principle of the Register from its inception, a concept that was discussed at length by the Parliamentary Committee set up to consider this proposal.

The federal income tax return is a critical medium for electors to register with the National Register of Electors. The document, which is used in all provinces and territories, provides the information required for registration in the National Register of Electors in a standardized format. As an information tool, it is even more up to date than provincial records of driving permits or provincial lists of electors, because nearly all electors file yearly income tax returns, but do not necessarily update their drivers' licences or vote in provincial elections as regularly. The information contained in income tax returns is updated regularly and allows for easier tracking of electors who move between provinces.

Following the enactment of amendments to the Canada Elections Act (Bill C-63),³³ and as a result of agreements between federal revenue authorities and Elections Canada, electors have been able, since 1997, to use the T1 General Income Tax and Benefit Return to communicate their names, addresses and dates of birth to Elections Canada for the purposes of updating their information in the National Register of Electors. Electors confirm their desire to communicate this information by checking a consent box on the form.³⁴ Approximately 84 percent of individuals who file income tax returns consent to communicate this information to Elections Canada.

As of the 2001 returns, citizenship status is included in this information, to permit the addition of new electors (especially youth) to the Register, but only by implication. From the 2001 to 2003 tax years, individuals were advised in the consent box on the T1 General Form and in the tax guide that this mechanism was for "citizens only." Thus, completion of the consent box implied that the respondent was a Canadian citizen. The T1 consent box was revised for the 2004 income tax year, with the addition of the following phrase on the T1 General form: "As a Canadian citizen, I authorize the Canada Revenue Agency to provide my name, address, and date of birth to Elections Canada for the National Register of Electors." An individual who checks this revised request box is also implicitly advising the Canada Revenue Agency that he or she is a Canadian citizen. The subsequent provision of that information to Elections Canada also implicitly carries with it the assertion that the individual in question is a Canadian citizen.

As discussed below, experience has demonstrated that forms of implicit assertions of citizenship, as currently relied on and however they may be modified, do not provide sufficient certainty for the direct addition to the National Register of Electors of consenting electors who file tax returns (referred to in this text as "taxpayers"). This is also the view of the Advisory Committee of Political Parties, which has stated that electors should not be added to the Register solely on the basis of these implicit assertions, without further confirmation.

The risk in relying on such implicit statements was shown by review exercises developed to verify the citizenship of consenting taxpayers after the 2001 modification of the T1 General form. As a result of those verification exercises, 173,000 individuals expressly confirmed that they were in fact non-citizens, despite the fact that they had originally checked the income tax box reserved for citizens.

Statistical analysis by Elections Canada indicates that 7 to 9 percent of young taxpayers (and about 54 percent of older taxpayers) who consent to be added to the Register through these implicit assertions of citizenship are in fact non-citizens.

A confirmation strategy was implemented in 2003-2004 to determine the citizenship of unconfirmed consenting taxpayers. The citizenship of more than 800,000 consenting electors was ascertained by matching their records against electoral data from provincial and territorial lists of electors and permanent registers of electors, and data from a 2003 Elections Ontario door-to-door registration exercise. Furthermore, the exercise confirmed the electoral status of some 305,000 young Canadians through "family matching" – matching them to older electors at the same address and with the same family name. Finally, a mail-out seeking confirmation of citizenship was sent to some 2.2 million potential electors in the fall of 2003, with an additional mail-out to 307,000 unregistered young Canadians in February 2004. Of these two groups, only 13 and 16 percent, respectively, confirmed that they were Canadian citizens. More than 81,000 (3.2 percent) responded that they were not Canadian citizens. Overall, these initiatives have proven to be laborious and costly (more than $3 million), while failing to meet the expectations of Canadian electors, who believe they have done what is necessary to be added to the Register by checking the consent boxes on their income tax returns.

Administrative efforts by Elections Canada to secure the further amendment of the T1 General form consent box to include an express statement of citizenship have been unsuccessful. Revenue authorities have raised legal concerns that there is insufficient legislative authority to include requests for the collection of citizenship data on the T1 General form and its subsequent transmission to Elections Canada. The Canada Revenue Agency has advised Elections Canada that income tax forms and the information collected thereby must be relevant to the application of the Income Tax Act and that citizenship does not affect the imposition of tax liability in Canada. For this reason, the Canada Revenue Agency has advised Elections Canada that, without express legislative reform, it is not prepared to adjust the electoral consent box on the T1 General form to include an express statement of citizenship.

Thus, to the extent that legislative reform is indeed necessary to permit electors to make express statements of citizenship, this report recommends that the Canada Elections Act and/or the Income Tax Act be amended to provide that electors may communicate with Elections Canada through their income tax returns in order to register with the National Register of Electors or to update their information on the Register. The Commissioner of the Canada Revenue Agency has indicated his support for this approach.

2.2 Income Tax Returns as a Source of Information About Deceased Electors

As noted earlier in this report, income tax returns are a major source of elector information for the National Register of Electors.

Electors who are deceased must be removed from the Register of Electors. Elections Canada usually learns that a person is deceased through information received from a provincial vital statistics bureau. It can be difficult, however, to consistently match this information with information about an elector in the Register, which may contain a different address or a different version of the elector's name. There may also be a time lag between the death of an elector and the transmission of that information to the provincial registrar of vital statistics and ultimately to Elections Canada.

Because of these difficulties, deceased electors might not be removed from the Register in a timely manner. The timeliness in updating the Register with respect to deceased electors could be improved if Elections Canada were able to receive from the Canada Revenue Agency a list of all individuals identified as deceased in their income tax return, if these individuals had consented to provide information to Elections Canada through their income tax return in the previous year.

2.3 Removal of the Need for Signed Certification

As noted in recommendation 2.1, to register with the National Register of Electors outside of an election period, electors must communicate that wish to the Chief Electoral Officer and satisfy him or her that they are Canadian citizens of at least 18 years of age. In addition to providing or confirming the necessary identification, an elector must provide the Chief Electoral Officer with a signed certification that he or she is qualified as an elector. This requirement for a signed certification imposes a degree of rigidity that does not admit for other equally reliable forms of evidence.

As a corollary amendment to this proposal, the requirement for a signed certification should be removed, permitting electors to communicate with Elections Canada through their income tax returns. This recommendation was also made in the 2001 report Modernizing the Electoral Process, and it is repeated here.

Because certification serves as a form of written personal assurance from the elector as to his or her eligibility, it contributes to the reliability of the resulting record. Eligibility, however, can be determined on the basis of other evidence. For example, information about an elector who has been previously verified by another federal department (such as Citizenship and Immigration Canada in the case of individuals who have recently acquired citizenship) may come to the Register. In that case, the personally signed certification adds little to the existing degree of reliability of the information.

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

Moreover, the Act does not uniformly require personally signed certification as a prerequisite to registration. For example, an elector who registers to vote with the returning office during an election, and whose name is consequently included later in the National Register of Electors, is not required by the Act to provide signed certification. An elector who registers another elector on the list on the list of electors under paragraph 101(1)(b) is also not required by the Act to produce a certificate of eligibility personally signed by the elector being registered.

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

In each of those cases, the responsible official is required to be satisfied that the person in question is eligible, but that assurance may be based on any sufficiently reliable evidence (the Chief Electoral Officer has issued instructions to returning officers to seek signed certification in those cases, either from the elector or the person requesting the inclusion or change on behalf of the elector).

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

It is worth noting that, while the Act imposes a rigid requirement for the written certification, there is no express offence provision for false certifications (as there is in subsection 549(3) for the taking of a false oath). The offence is the giving of false information under section 480 of the Act, which would be equally applicable regardless of the form in which the false information was given. If a person voted without being eligible, the offence would be for voting, not for providing a false certificate. Thus, the enforcement provisions of the Act suggest that the substance of the information provided, rather than the specific form in which it comes, is the central point of the provision.

2.4 Proof of Identity When Registered at Residence

Recommendation 1.1.6 in the 2001 report Modernizing the Electoral Process dealt with the registration of electors at their residences during an election. That recommendation is repeated here with a slight modification.

The Act currently requires that, before an elector can be added to the preliminary list of electors during an election, satisfactory proof of identity must be provided (s. 101).

As noted in the 2001 report, the requirement for proof of identity is logical (and not onerous) when an application to be added to the preliminary list is made by an elector who has visited the office of a returning officer expressly for this purpose, or who has expressly prepared and forwarded such an application to a returning officer.

As part of the targeted revision process during an election, revising agents may visit the residences of electors to provide an opportunity for the registration of electors who live there. In such circumstances, the need for proof of identity may be less, though the burden of providing it may be more onerous.

The need for documentary evidence is less in these circumstances because the finding of the elector at his or her home by revising agents, while not determinative of the issue, affords a degree of certainty sufficient to establish identity. However, an individual who is found by revising agents at his or her home does not usually have the documentation to prove the identities of all of the other electors residing there.

Thus, in the absence of any circumstances that might give rise to a reasonable suspicion, proof of identity should not be an absolute requirement for an elector to be added to the preliminary list of electors when an elector, who has been found at his or her home by revising agents, requests either that he or she or another elector who resides at that residence be added to the list. Rather, where such proof of identity is not available, the elector should be able to establish the identity of either himself or herself or of another elector who lives at the same residence through a written affirmation.

Proof of identity was not required under the earlier enumeration system: so long as the enumerators were satisfied as to the propriety for doing so, they were authorized to register electors without requiring the "at-home" elector to provide proof of identity for electors who were not home.

The current prohibitions in paragraph 111(d) (applying for registration of person who is not qualified as elector or entitled to vote) and 111(e) (applying to include name or animal or thing) and subsection 549(3) (false oath or affirmation) are sufficiently broad to cover this revised provision.

2.5 Inter-district Changes of Address

Paragraph 1.1.5 of the 2001 report Modernizing the Electoral Process recommended that subsection 101(6) of the Act be amended to extend the ability of returning officers to record inter-district changes of address in the same manner as they do intra-district changes of address. This recommendation is repeated here.

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

Currently, subsection 101(6) of the Act provides that an elector who changes his or her address within the same electoral district may contact the returning officer by phone or by any other means and, on providing satisfactory proof of identity and residence, apply to have the relevant corrections made to the list of electors for that district. Such changes can also be requested by one elector on behalf of all electors living at the same residential address. Since the 37th general election, any elector making a request under subsection 101(6) will see his or her name added to the list of electors for the polling division where he or she now resides, while his or her record is crossed off the list of the polling division where he or she previously resided. This is done in one step, using a computer database introduced in returning offices in 2000.

However, this can be done only when the elector changes address within the same electoral district. A change of address to a different electoral district cannot be recorded as easily. A previously registered elector who finds himself or herself in a different electoral district as a result of a change of address must apply to the returning officer of his or her new district to be added to the list of electors for that district. To do this, the elector must complete and sign the prescribed registration form under section 101 (or one of the alternative registration processes under that section), which is a more demanding and onerous administrative process.

This process has its roots in an era when one returning officer was not practically able to verify the registration of an elector on a list of electors for another district. However, technological advances now make it possible for returning officers to do this, so that such a transaction is no longer substantially different from a change of address within the same district. Therefore, there is no longer any reason to distinguish between the recording of inter- and intra-district changes of addresses of registered electors.

2.6 Authority to Determine When to Send Out Voter Information Cards

Recommendation 1.1.5 of the 2001 report Modernizing the Electoral Process recommended that the Act provide more flexibility as to the information currently delivered through the voter information card (VIC). This recommendation provides an alternative solution to the issues noted in the 2001 report.

The Act requires that each returning officer, as soon as possible after the issue of the writ, but not later than the 24th day before election day, send a notice of confirmation of registration (the VIC) to each elector whose name appears on the preliminary list of electors. This notice, and the requirement for its early delivery, serves to assure electors as soon as possible that they are registered to vote. It also allows electors who do not receive a notice within that period to know that they are not registered, and provides sufficient time for those electors to do so before election day.³⁵

In addition to confirmation of an elector's registered status, the Act also requires that the notice provide the voting information the elector will need to know in order to vote. This includes the address of the elector's advance and election day polling stations and the dates and hours for voting.

The VIC currently serves these two purposes simultaneously.

While the existing time frame ensures that electors have sufficient notice to take advantage of the revision period for updating or correcting their information on the preliminary lists, or to register if they have not already done so, it prevents the introduction of new, more efficient and streamlined processes of printing and disseminating the VICs.

Furthermore, requiring these notices to go out early in the election period sometimes results in cards being delivered with unconfirmed polling station information or locations that had to be changed later on (resulting in the need for additional, potentially confusing, notices to be sent to the relevant electors).

So, greater flexibility is required, to avoid situations where a returning officer is required to issue a card before being able to gather all of the required information.

2.7 Addition of Year of Birth on Lists of Electors Used on Polling Days

Voter information cards (VICs) sent to some addresses – often apartment buildings in areas with a large turnover of residents – are sometimes discarded near the mailboxes of the building. Some electors who are not interested in voting may also discard their VICs. This situation may raise concerns that the discarded VICs will be used by others, fraudulently, to vote under the name of the card's addressee.

A further concern has been expressed that these VICs could be used to identify electors who are unlikely to vote; individuals could then be dispatched to vote, purporting to be the electors whose names were on the discarded cards.

So far, there has been no evidence of such fraudulent activity. Furthermore, the election officers administering the vote at the polls, and the candidates' representatives, are authorized by the Act to challenge a person intending to vote if there is any doubt about the person's identity or right to vote, and to ask the person to show a satisfactory proof of identity and residence.³⁶ The VIC alone does not provide this.

To complement legislative and administrative measures already in place, this report proposes that electors' year of birth (which is not given on the VIC) be added to the lists of electors used at the advance and regular polls. Such a measure would reduce the ability of individuals to use a discarded VIC as a means to vote under another name – especially if this addition is well publicized. It would also reduce the risk of personification of individuals whose names appeared on discarded VICs by providing a further tool to election officers when deciding whether to challenge the elector before them.

This report also proposes that this additional information be added only to the revised and official lists of voters distributed to election officers for advance polling and polling day (and recovered by the returning officer after the vote), and not to members of Parliament, candidates or parties.

2.8 Retention of Statutorily Authorized Personal Identifiers for Later Use

Section 46 of the Act authorizes the Chief Electoral Officer to update the National Register of Electors from a number of sources, including information that the elector has expressly authorized a federal department or body to give to the Chief Electoral Officer and information that is held under a provincial statute listed in Schedule 2 of the Act. Among the various provincial statutes listed in Schedule 2 are those that deal with motor vehicle administration, vital statistics and elections. Information that comes to Elections Canada through these sources may contain personal information that can be useful in identifying an individual, but which is not itself incorporated into the Register. For example, information provided under a provincial motor vehicle administration may include a person's driver's licence number. As the driver's licence number is not incorporated into the Register, this corollary information cannot be retained and used later by Elections Canada for updating purposes.³⁷

Electors subsequently updating their electoral data with the Register may find it useful to provide this type of additional identifier information to assist in ensuring the accuracy of the updating process – particularly where the elector has moved from an earlier address. The ability to refer to such additional identifier information would also likely be of value to electors in any on-line registration and updating process that Elections Canada may develop in the future, as was done in British Columbia leading up to its recent election.

Amending section 46 to permit Elections Canada to retain and employ corollary information provided to it from a source authorized under the statute would therefore increase the accuracy and ease of updating Register data, both by electors and by Elections Canada.

Elections Canada would not be authorized to disclose this corollary information except to the elector (when requested by the elector under section 54 of the Act) or to the original source of the data.

2.9 Release of Information from the National Register of Electors in the Interests of Public Safety, Health or Security

Paragraph 56(e) of the Act prohibits any person from knowingly using personal information that is recorded in the National Register of Electors for a purpose other than:

(i) to enable registered parties, members or candidates to communicate with electors in accordance with section 110,

(ii) a federal election or referendum, or

(iii) an election or referendum held under provincial law, if the information is subject to, and transmitted in accordance with, an agreement made under section 55.

This prohibition applies to the Chief Electoral Officer as it does to all other persons. One of the effects of this prohibition is that, unless that release is at the direction of the elector to whom the information relates, or it can be justified under one of the delineated grounds of paragraph 56(e), personal information cannot be released from the Register, even when such information may be needed in the interests of public safety, health or security. The section prohibits, for example, the release of personal information from the Register to enable public authorities to identify residents in an area threatened by a natural calamity.

Personal information contained in the Register is also protected by the Privacy Act. However, the Privacy Act permits the disclosure of personal information protected by it without the consent of the person to whom the information relates where (among other cases), in the opinion of the head of the institution holding the information, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or where disclosure would clearly benefit the individual to whom the information relates.³⁸ When personal information is released under this provision of the Privacy Act, the head of the institution is required to notify the Privacy Commissioner prior to the disclosure if this is reasonably practicable or, in any other case, at the time of the disclosure. If the Commissioner considers it appropriate, the Commissioner may then notify the person to whom the information relates.³⁹

The prohibition in section 56 of the Canada Elections Act, however, operates independently and is supplementary to the Privacy Act. Thus, the provision of the Privacy Act permitting disclosure in the public interest or in the interest of the relevant individual cannot be invoked to overcome the prohibition in section 56. Thus, the Privacy Act cannot be invoked by the Chief Electoral Officer to release personal information in the Register on the grounds that the release is necessary to protect public safety, health or security.

For this reason, the Chief Electoral Officer should be permitted to release personal information in the National Register of Electors where, in his opinion, this is necessary in the interests of public safety, health or security.

Any such release of information should be disclosed in the next report that the Chief Electoral Officer makes to the Speaker of the House of Commons under section 534 of the Canada Elections Act, except to the extent necessary to protect public security.

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³³ An Act to amend the Canada Elections Act, the Parliament of Canada Act and the Referendum Act, S.C. 1996, c. 35.

³⁴ Subsection 46(1) of the Canada Elections Act provides that "The Register of Electors shall be updated from (a) information ... (ii) that is held by a federal department or body and that electors have expressly authorized to be given to the Chief Electoral Officer ..."

Subsection 46(1) is supplemented by subsection 241(5) of the Income Tax Act, which provides that an official may provide taxpayer information to any other person with the consent of the taxpayer.

³⁵ Electors who register during the election period are sent a VIC not later than the fifth day before polling day.

³⁶ Section 144 of the Act.

³⁷ The information that is incorporated into the Register is set out in subsection 44(2) of the Canada Elections Act and consists of an elector's name, sex, date of birth, civic address, mailing address and any other information that the Act authorizes the elector to give the Chief Electoral Officer to implement agreements entered into between the Chief Electoral Officer and other provincial electoral authorities under section 55.

³⁸ Privacy Act, R.S.C. 1985, c. P-21, s. 8(2)(m).

³⁹ Privacy Act, R.S.C. 1985, c. P-21, s. 8(5).

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