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

2.10 Use of Personal Information by Political Parties and Members of Parliament

Section 110 and paragraph 111(f) of the Act impose artificial constraints on the electoral uses to which political parties and members of Parliament can put personal information from the lists of electors distributed to them annually under section 45 and, following an election, under section 109.

Under paragraph 111(f), personal information from those sources cannot be knowingly used by any person for a purpose other than:

Section 110, which describes the permitted use of that information by registered parties, members of Parliament and candidates, is artificially restrictive in its attempt to structure the communication uses that may be made of that information by parties and members of Parliament:

Outside of soliciting party memberships and contributions, a member may use the personal information on the list for his or her own electoral district only to communicate with his or her own electors, for the member's own benefit. The member may not use the lists of electors provided to other members of the House of Commons or to a registered party, to send a communication beyond his or her electoral district. Arguably, the member cannot share the information on his or her list with his or her registered electoral district association unless the association acts as the agent of the member and uses the information only for the benefit of the member (rather than that of the association). Nor can the member use the information on his or her list to benefit his or her party (except for the solicitation of contributions or memberships to the party) or his or her electoral district association.

Similarly, a party cannot share personal information from its lists with its members of Parliament or with its registered electoral district associations, except where a member of Parliament or association is acting as the agent of the party and for the benefit of the party.

It may also be argued that if an elector contacts a registered party or member of Parliament outside of an election period in order to verify whether he or she is registered, the party or member of Parliament cannot use the available list for that purpose – because this use of the list is for the purposes of the elector, not the party or the member. Instead, they must refer the elector to Elections Canada. While there are obvious practical advantages in referring this question to Elections Canada, so as to ensure access to the most current information, it should not be a criminal offence for a party or a member to attempt to assist an elector in this way outside of an election period.

These restrictions do not reflect the actual interrelationships between a political party, its members of Parliament and its registered electoral district associations. While these are separate entities, they are at the same time interdependent bodies that, by virtue of their common membership in a single political party, are intended to co-operate.

Once an election or referendum is called, subsection 111(f) permits the use of the personal information on a list of electors for any purpose related to the election or referendum.

Rather than attempting to impose the current, artificially restrictive list of permitted uses on parties and members, it would be preferable instead to adopt a broader approach, similar to permitted uses during an election, as provided for in subparagraph 56(e)(ii) (respecting information in the National Register of Electors) and paragraph 111(f).

2.11 Stable, Unique Identifier for Electors

Section 46 of the Act does not provide for the assignment of a constant and unique electoral identifier to registered electors.⁴⁰ Although a number of identifiers (date of birth, mailing and civic addresses, gender, etc.) are already provided for under the Act, updating of Register information is sometimes complicated by the reporting of elector information in a form different from that of the registered version of that data, or the failure to include more specific identifiers, such as date of birth.

The variations that can result from different combinations of first and second names and initials are a common example; an elector who registers under one combination of names might not necessarily use the same combination when updating that information.

The difficulty of varying formats is particularly evident when parties attempt to update their internal lists. The volume of data and the resources of the organization doing the integration already present challenges, which are compounded by the lack of authority for Elections Canada to provide date-of-birth information in the lists it distributes under sections 45 and 109.

As a result, parties must often resort to expending considerable resources on the process. Even so, many errors are made, and the accuracy of these internal lists decreases over time. A major cause of these errors is the fact that many electors may share the same name, and a change may be attributed to the wrong elector. This can raise concerns, not only for the parties and candidates in their ability to communicate with electors, but also for the electors they contact, who may be concerned or confused about the accuracy of their information on the Register or on a list of electors.

Many political parties have indicated that the integration of lists of electors into their own internal party lists would be made easier if electors were assigned a stable identifying number for the purposes of the lists of electors only. This would ensure that where there is a change, parties could clearly identify the individual to whom the change relates.

The stable identifier would be randomly generated and assigned, and would be for the purposes of the lists of electors only. Giving electors the option of including the unique identifier at any time that they update information would decrease electors' uncertainty about the accuracy of their information in the Register or on the lists.

2.12 Distribution of Lists of Electors to Registered and Eligible Parties

Recommendation 2.2.2 in the 2001 report Modernizing the Electoral Process recommended that sections 45 and 109 of the Act be amended to give eligible parties the same rights of access to lists of electors as registered parties have. The report also recommended that the right to lists of electors should be expanded to all registered and eligible parties on request, whether or not the party had run a candidate in that district in the previous election. That recommendation is repeated here.

As noted in the 2001 report, aside from being necessary for managing the actual voting process, the list of electors is an important planning and campaigning tool. For these reasons, the Act provides limited rights of access to these lists to parties and to candidates.

During an election, candidates receive copies of the preliminary, revised and official lists of electors for their districts (sections 94 and 107). At the end of an election, each elected member of Parliament receives a copy of the final list of electors for his or her district, and every registered party is entitled to receive a copy of the final list, on request, for every district in which they ran a candidate (section 109). Thereafter, each member of Parliament receives an annual list of electors for his or her district, and every registered party is entitled to receive, on request, a copy of a list for each district in which they ran a candidate in the previous election (section 45).

The distribution of lists to parties under these provisions is inequitable, both in their failure to provide lists to eligible parties and in their general restriction against making available to registered parties lists for the districts in which the party did not run a candidate in the previous election. This restriction also makes it difficult for parties to expand into new electoral districts or districts in which they have not run a candidate in the previous election, which translates into an advantage for parties that already have a presence in those electoral districts.

The ruling of the Supreme Court of Canada in Figueroa v. Canada⁴¹ raises concerns about the provision of lists of electors to some political parties and not to others. Making the lists of electors available to all registered and eligible parties reflects the spirit of that decision.

2.13 Distribution of Additional Lists of Electors to Candidates on Day 19

During an election period, candidates receive "preliminary lists of electors" as soon as possible after the issue of a writ (section 94), "revised lists" on the 11th day before polling day, and "official lists" on the 3rd day before polling day (section 107). Candidates rely on these lists for communicating with electors. However, the preliminary lists may not contain many of the most recent changes to the National Register of Electors (as discussed in recommendation 2.14 below). Candidates therefore do not get access to the most up-to-date information until the publication of the revised lists of electors on the 11th day before polling day.

Provision of an additional list of electors on the day that all confirmations of nominations must be completed – approximately midway between the issuing of the preliminary and revised lists – would provide candidates with more accurate information earlier in their campaigns. This list would include the various revisions made to the lists by returning officers over this period, along with any last-minute updates to the Register downloaded electronically to the returning officer after the production of the preliminary lists of electors. Provision of this list in electronic format would ensure that making this supplementary list available would not constitute an undue burden on returning officers.

2.14 Distribution of Preliminary Lists of Electors to Parties at the Issue of Writ

There is currently no provision in the Act authorizing the transmission of a copy of the preliminary list of electors to registered or eligible parties at the drop of a writ in an electoral district. Candidates in a district may secure the preliminary list through a request to the returning officer of the district, under section 94.

Parties going into an election in a district must therefore either work from the copy of the list of electors that they may have been provided earlier under the annual provisions of lists under section 45 of the Act, or secure a copy of the preliminary list from the party-endorsed candidate in that district.

It is to the benefit of the electorate and the public that registered parties in an election work from the most up-to-date lists. This reduces the chances of errors in communication or concerns about electors' registered status. However, in the period of time between the annual distribution of lists under section 45 and the dropping of a writ in an electoral district, significant changes may have since been made to the relevant list.

Where the boundaries of an electoral district have been newly created or adjusted as a result of the electoral-boundary adjustment process, parties may also find themselves going into an election in an electoral district for which they have no list of electors. The earlier list of electors provided to parties under section 45 will not reflect such newly created or adjusted boundaries, as was the case in the 38th general election. At that time, the Chief Electoral Officer used his authority under section 17 of the Act to adapt section 93 of the Act to provide electronic copies of the preliminary lists of electors to registered parties on request.⁴²

As noted, a party can secure a copy of endorsed candidates' list of electors, provided to the candidate on the confirmation of his or her nomination by the returning officer. However, requiring a party to secure and coordinate such lists imposes an additional administrative burden during the election period, which can be as short as 36 days.

The preliminary list of electors is currently provided to returning officers by the Chief Electoral Officer as soon as possible after the issue of a writ. There would be little additional burden on the Chief Electoral Officer to also provide electronic copies of the lists to registered parties on request, as was done during the 38th general election, pursuant to the adaptation of the Act made at that time.

2.15 Change in the Date for the Annual Distribution of Lists of Electors

Elections Canada estimates that, in the months of July and August, 10 percent of Canadians change their addresses. This makes these months the busiest season for updates to the National Register of Electors.

Section 45 provides that lists of electors for a district are to be sent every year by October 15 to members of Parliament and, on request, to registered parties that ran candidates in the associated districts in the previous election.

Because information relating to moves from July and August is captured in update data that Elections Canada receives from various sources in late September or early October, Elections Canada is not able to integrate the data in time for the October 15 distribution. As a result, those lists are significantly out of date even when they are issued. Moving the date of production of the annual lists back by one month would result in a significant improvement to the quality of the lists provided to members of Parliament and parties.

2.16 Exception Period for Production of Annual Lists of Electors

Subsection 45(3) of the Canada Elections Act states that the annual lists of electors that must normally be distributed to parties by October 15 need not be produced if that date falls within an election period or in the three months after polling day.

This three-month exception accounts for the fact that parties already receive final lists of electors "without delay" after a general election. These final lists include all of the updates brought about by revision during the election period, and registrations and corrections made to the lists on polling day; there is therefore no need for another comprehensive list so soon afterwards.

Furthermore, the lists of electors produced under section 45 may in fact be less up to date than the final lists of electors that preceded them. This is because the two sets of lists have different sources. The final lists are produced from changes to the preliminary lists of electors that have occurred during the election period. These changes are made in the various returning offices across the country and are compiled into the final lists. The annual lists of electors are produced directly from the National Register of Electors. However, some time is needed to upload the millions of changes made during the election from the returning offices to the Register.⁴³

Experience from the 2004 general election, which had a polling day four and a half months before October 15, showed that more time is required as an exception period in subsection 45(3) to meet all the technical requirements to ensure that the annual lists are more up to date than the final lists produced after the election.

2.17 Use of Returning Officers Outside of Elections for Updating Initiatives

Returning officers' duties are carefully set out in the Act. These include revising the lists of electors during an election period. However, returning officers are not expressly provided with a role in updating the National Register of Electors between election periods.

Returning officers have unique knowledge of the geographic and demographic make-up of their electoral districts; this knowledge, which is already used in determining polling sites and polling division boundaries, could be further tapped by relying on returning officers to identify areas of high mobility and areas of new development that should be targeted for revision outside an election period. Work on updating the National Register of Electors outside an election period reduces the amount of revision that must be done once an election is called.

2.18 Updating Lists During Elections on the Basis of Information from the National Register of Electors

This recommendation was included in the 2001 report Modernizing the Electoral Process, and is repeated here.

As stated in the 2001 report, once an election is called, the focus of changes to lists of electors is on initiatives undertaken by electors. For example, section 101 provides for additions to the list in response to electors' requests. The Act, however, does not address the updating of a list of electors on the basis of information that had come to the Register earlier, but which had not yet been incorporated into the Register at the time the preliminary lists were prepared, or information that came to the Register after the preliminary lists of electors had been issued.

Substantial numbers of address changes and notifications of deaths come to the Register through statutorily authorized routes just before and after the issue of the writs for an election. The preliminary lists are prepared from information in the Register; because of the timing, changes that come to the Register just before or just after the dropping of the writ are not reflected in the preliminary lists. Failing to use the Register as a source for updates during an election imposes the full burden on individual electors to ensure that their changed information is accurately reflected in the lists.

During an election, updates to lists of electors are currently carried out from the Register, where warranted, to avoid the imposition of a significant burden on the electorate. Thus, in the 2000 general election, returning officers made 481,400 revisions to the lists by using data that came to them through the Register. In the 2004 general election, 337,588 updates were sent to returning officers from the Register; of these, 334,819 revisions were made to the list.

Returning officers have implicit authority to act on such information from the Register during an election, if the information applies to deceased electors, electors who have moved, or correction of omissions, inaccuracy or error. However, their authority to add electors is not as clear.

Consequently, express authority should be provided in the Act to clarify the authority of returning officers to revise lists of electors on the basis of information provided from the Register during an election. Such a provision would mirror the current provision that directs the updating of the Register, during an election, through information provided by returning officers (s. 47).

2.19 Provincial Use of Data from the National Register of Electors

The wording of subsection 55(3) and paragraph 56(e) of the Act creates an uncertainty as to whether provincial authorities may use their own lists of electors, where such lists draw on personal information that originally came from the National Register of Electors, pursuant to an agreement under section 55 of the Act. More specifically, it is unclear whether paragraph 56(e) prohibits those authorities from using their own electoral lists for anything other than a provincial election or referendum; nor is it clear whether subsection 55(3), which provides that provincial authorities receive personal information from the National Register for the creation of provincial lists of electors, authorizes those electoral authorities to use the lists for any other purpose.

This uncertainty limits the ability of the various Canadian electoral authorities to co-operate fully in the maintenance of their lists.

Section 55 authorizes the Chief Electoral Officer to share information in the National Register with provincial authorities responsible under provincial law for establishing a list of electors, for the purpose of creating those lists:

Paragraph 56(e) provides that no person shall knowingly use personal information that is recorded in the Register for purposes other than those listed in that section – one of which is the use of the information in 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.

Obviously, section 56 does not operate strictly as written. For example, notwithstanding its express words, it does not prohibit the use of personal information solely because that information is recorded in the Register. Such a reading would impose upon that information far greater restrictions than imposed even by the Privacy Act on personal information – insofar as section 56 of the Canada Elections Act does not contain the extensive list of permitted uses found in section 8 of the Privacy Act, or the general non-application rule set out in subsection 69(2) of the Privacy Act, which applies to publicly available personal information. Applying section 56 strictly as written would, for example, have the following consequences:

• It would preclude a person from using his or her own personal information, if that information came to him or her as a result of an inquiry under section 54.⁴⁴
• No other person or entity could use an elector's personal information for any purpose other than a federal election or referendum, regardless of how that information came to them, if that personal information were recorded in the Register.

Furthermore, adopting strict interpretations of these prohibitions would lead to problems with the interaction of section 55 and section 111 of the Canada Elections Act. Section 111 prohibits the use of personal information found on a list of electors and is worded in a fashion similar to section 56.⁴⁵ Applying a strict reading to section 56 would argue for the adoption of a similarly strict reading of section 111, which would result in section 111 operating to preclude the use of federal personal information for the creation of provincial lists, from the moment that Register information appeared in a list of electors.

Therefore, it is evident that section 56 cannot be read strictly. And while it is clear that section 56 would not operate to preclude a person or organization from using personal information that is recorded in the Register but which came to them from some other source, it is not as clear how far the prohibition in paragraph 56(e) is to be interpreted. Does it extend to prohibiting a provincial authority from using a provincial list for a purpose authorized under provincial law, if any personal information from the National Register of Electors had been used in the construction of those provincial lists – even if that information had been confirmed, verified or duplicated from other provincial sources?

In its application to the ability of the Chief Electoral Officer to share personal information with provincial electoral authorities, section 55 of the Canada Elections Act expressly considers the use of personal information for the creation of lists of electors ("electors" being descriptive of the content of the list, not its use) under a provincial law. Subsection 55(1) authorizes the federal Chief Electoral Officer to enter into agreements with any body responsible under provincial law for establishing a list of electors, governing the giving of information contained in the National Register of Electors if that information is needed for establishing such a list. However, the province must be compiling that list of electors for the purposes of an election or a referendum. It must not be compiling that list for some other purpose.

Provided that the provincial authority is using the information for that purpose, it can be argued that there is no breach of subsection 55(3). However, it is not clear, once a provincial authority has created a list for use in its electoral proceedings, whether provincial legislation may authorize the list to be used for other purposes.

This ambiguity would be resolved if it were made clear in the Act that neither subsections 55 nor 56 were to operate to prohibit the use of provincially created lists of electors according to provincial law.

This inter-reliance of rights on federal and provincial law has a precedent in section 48(3) respecting the addition of electors to the National Register. The general rule is that one cannot be added to the federal Register without one's consent (s. 48(2)). Notwithstanding, the Act expressly provides for the addition of an individual to the Register if that individual appears on a list of electors established under provincial law and the Chief Electoral Officer considers the information on the provincial list to be sufficient for the inclusion of the elector on the federal list. In that case, the protection afforded the individual not to be added to a list of electors without consent is found in the requirements established under provincial authority respecting the creation of the provincial lists – not in the federal statute.

2.20 Sharing Elector Data with Provincial Electoral Authorities for Updating Purposes

The Act already provides for significant co-operation between federal and provincial electoral authorities in the maintenance of the National Register of Electors and provincial electoral data. Electors may be added directly to the National Register from lists of electors established under the various provincial laws specified in Schedule 2 of the Act, if those lists contain the information that the Chief Electoral Officer considers sufficient.⁴⁶ Similarly, section 55 of the Act permits the Chief Electoral Officer to enter into agreements with provinces, territories and municipalities to provide them with information contained in the Register for the purposes of their electoral lists. In this continuous co-operation, electoral authorities often build on each others' work. For example, information contained in the National Register may be used by a provincial authority in a targeted revision exercise – and the results of this exercise, once incorporated into the provincial list, can be used to update the National Register.

However, section 55 authorizes the Chief Electoral Officer to share with provincial electoral authorities only information that has already been incorporated into the National Register. Until then, data that the Chief Electoral Officer collects for updating purposes cannot be shared with provincial electoral authorities. This restricts the ability of the Chief Electoral Officer to share Register source data with provincial electoral authorities for verification or supplementation purposes. Sharing of preliminary data can be extremely useful, because it enhances the ability of electoral authorities to coordinate and supplement their resources. This type of sharing can now be done indirectly through the adoption of appropriate mechanisms. For example, in 2003, Elections Ontario, in the conduct of a door-to-door provincial registration exercise agreed, for National Register purposes, to ask electors if they were Canadian citizens. However, it would be preferable if the Act were clarified to permit more direct sharing of statutorily authorized Register source data for updating purposes.

Permitting the sharing of information garnered from the statutorily authorized Register sources with Elections Canada's provincial, territorial and municipal partners would more easily permit those authorities to use this information to refine and maximize their local updating efforts. The resulting updates to the provincial lists would in turn be shared with Elections Canada for the updating of the National Register.

The existing protection in section 56 for personal information from the Register should be adjusted to include shared source data, in addition to personal information already recorded in the Register or on a list of electors.

2.21 Sharing Neutral Address and Geographic Information

In the course of performing his duties as outlined in the Canada Elections Act and the Electoral Boundaries Readjustment Act, the Chief Electoral Officer develops tools and secures data that may be of use to other government agencies. These include geographic tools such as detailed maps and a comprehensive list of addresses for the entire country. Sharing this information with other government agencies is often useful to those agencies, and can reduce duplication of effort within the government. Furthermore, by sharing address and geography information and co-operating in the maintenance of this data, the quality of the information is improved. For example, sharing addresses with Canada Post Corporation will improve elector mailing addresses, resulting in more effective delivery of the voter information cards and, consequently, improved service to electors. The authority to share information would not extend to personal information about identifiable individuals and should therefore not raise privacy concerns. While it appears that the authority to release information of this nature may be implicit in the mandate of the Chief Electoral Officer, it would be preferable if the Act contained express authority rather than relying on interpretation.

2.22 Verification of Eligibility at Polls

Recommendation 1.1.7 of the 2001 report Modernizing the Electoral Process recommended that section 144 of the Act be amended to provide that, where reasonable doubt is raised at a polling station about the eligibility of an elector to vote, the elector may establish that eligibility through a written affidavit or solemn affirmation. That recommendation is repeated here.

Currently, the Act provides that a deputy returning officer, poll clerk, candidate or candidate's representative who has doubts about the identity or right of a person intending to vote at a polling station may request that the person show satisfactory proof of identity and residence. The elector is also authorized to take the prescribed oath rather than showing proof of identity. However, when doubt about a person's eligibility (citizenship and age), rather than identity, arises at a poll, there is no authority to require any form of proof of that eligibility.⁴⁷

There would be little additional burden on individual electors or on the system if, in cases where reasonable questions of eligibility arise, potential electors were required to verify their eligibility to vote by providing a written affidavit or solemn affirmation of their eligibility. The purpose of requiring the oath or affirmation to be in writing would be to create a record. The current enforcement provisions for oaths would also be available for these oaths or declarations.⁴⁸

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⁴⁰ Registered electors are currently assigned a registration number. This number is not personal to that elector, but is assigned according to the elector's numerical appearance on a particular list. The assigned number will not remain the same if an elector changes districts and is registered for his or her new district.

⁴¹ Figueroa v. Canada (Attorney General) [2003] 1 S.C.R. 912.

⁴² The adaptation added the following subsection 93(4) to the Act for the period of the election:

93(4) The Chief Electoral Officer, on request, shall send to each registered party, as soon as possible after the provision of the lists of electors under subsection (1) a copy in electronic form of the preliminary list of electors referred to in subsection (1) for every electoral district established by the 2003 representation order which consists of all or part of an electoral district established by the 1996 representation order for which the party had endorsed a candidate in the last general election or subsequent by-election.

⁴³ More than three million such changes were made in the 2004 election.

⁴⁴ 54. At the written request of an elector, the Chief Electoral Officer shall send the elector all the information in the Chief Electoral Officer's possession relating to him or her.

⁴⁵ 111. No person shall ...

(f) knowingly use personal information that is recorded in a list of electors for a purpose other than

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

(ii) a federal election or referendum.

⁴⁶ Subparagraph 46(1)(b)(i) and section 49 of the Canada Elections Act.

⁴⁷ Up to the 14th day before polling day, objections to a person's appearance on a list of electors, including objections based on eligibility, may be raised before the relevant returning officers. Sections 103 and 104 set out the procedure to be followed by returning officers in deciding whether the name of a person objected to should be retained or deleted from the list. This process, however, is available only for objections raised before the 14th day before polling day.

⁴⁸ Subsection 549(3) provides that no person shall falsely take an oath that is provided for under the Act. Paragraph 499(2)(a) makes it an offence to knowingly contravene subsection 549(3).

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