An Electoral Framework for the 21st Century: Recommendations from the Chief Electoral Officer of Canada Following the 42nd General Election

Although guidelines and interpretation notes are not binding and are issued for information purposes only, they must be published for 30 days on the Elections Canada website before they are "issued" and placed in the registry. This period serves no purpose. In addition, the timelines for Elections Canada to consult with political parties and with the Commissioner (15 days) and to issue the final documents have not proven realistic. In practice, Elections Canada has allowed a 45-day consultation period, which political parties have indicated is necessary for them to provide feedback. More time is also needed to allow Elections Canada to finalize the documents, including editing and translating them and fulfilling electronic publication requirements. Currently the Act provides for a 60-day timeline, including consultations.

The production of written opinions in response to requests from political parties also presents challenges, but there is a greater need for timeliness here in order for them to remain useful.

A distinction should be made between guidelines and interpretation notes, on the one hand, and written opinions requested by political parties, on the other hand.

In the case of guidelines and interpretation notes, the requirement for the CEO to "publish" them before they are officially issued should be deleted. The consultation period with the Commissioner and political parties should be lengthened to 45 days, and the overall production deadline should be deleted.

In the case of written opinions, the requirement for pre-publication should be maintained. However, the consultation period should be lengthened to 30 days and the overall production timeline lengthened to 90 days. The Commissioner agrees with these recommendations, and members of the Advisory Committee of Political Parties are supportive.

Many provisions of the Act require the collection of information about the "sex" of electors. Thus, many Elections Canada forms require an elector to indicate whether they are male or female; there is no other option. However, there are gender identities other than male and female.

This issue is not restricted to Elections Canada–it is a government-wide matter. The Canadian Human Rights Commission and the Treasury Board Secretariat are currently conducting research into the collection and use of gender information by government institutions.

The absence of gender information on lists of electors at polling stations would not impact the integrity of the voting process. In fact, poll workers are currently instructed to disregard gender information on the lists of electors. However, the collection of gender information is important in many cases for identifying electors and matching information in the NROE, and is also useful to provide statistical information about candidates.

The Governor in Council may order the withdrawal of the writ in any electoral district where the CEO has certified that it is impracticable to conduct an election because of "flood, fire or other disaster". When a writ is withdrawn, the election period for the affected electoral district must be entirely restarted, with all the attendant costs, time delays and political financing considerations. It would be preferable to have the option of postponing polling day for several days, rather than withdrawing the writ entirely. Several provincial electoral regimes allow postponements.

In addition, in cases where the writ is withdrawn, the Act should affirm that the Governor in Council retains the authority to order the issue of a new writ. The wording of the current provision suggests that the CEO might bear this responsibility.

This provision should authorize the CEO to recommend to the Governor in Council that an election be postponed for a maximum period of one week, rather than cancelled altogether, in circumstances where a postponement is practicable.

When a writ is withdrawn and a new writ must be issued, it should be clear in the Act that the Governor in Council, not the CEO, is responsible for setting the date for a new election in that electoral district.

The requirement in section 62 for ROs to publish a Notice of Election should be repealed. Alternatively, the section could be amended to make the CEO responsible for publishing the specified information centrally.

Consequential amendments would be required wherever reference is made to the Notice of Election (sections 27, 67, 77, 130, 293 and 548), including Form 2 of Schedule 1, which prescribes the notice's format.

The Act contains prescriptive rules for drawing polling divisions and establishing polling stations. These rules include timeframes in which polling divisions may be redrawn (that is, "merged" or "split" because of the number of electors) and deadlines for providing candidates and parties with written notice of the addresses of the polling stations. The strict rules limit the ability of ROs to make adjustments to better serve electors when circumstances change, which can happen at any time. This is despite the fact that any adjustments made can be rapidly communicated to electors, candidates and parties through the news media, social media and other methods as required.

Furthermore, the rules for ordinary polling divisions are often different from advance polling districts in ways that are not explained by the substantive differences between the two types of polls.

These rules should be flexible so that polling divisions can be drawn in a way that is consistent, serves electors and is transparent to everyone.

If Recommendation A2 is not accepted, the Act should be amended to allow polling divisions or advance polling districts to be merged at any time. Under current restrictions, this can only be done after the revision period (section 108) for ordinary polling divisions and within the first four days after the issue of the writ (subsections 168(4) and (5)) for advance polling districts. These time limits should be deleted. The only restriction should be that the RO must seek prior approval from the CEO.

Similarly, deadlines for splitting polling divisions–where a poll is found to have too many electors to operate efficiently–should be removed. This can be achieved by deleting the deadline in subsection 120(2) for ordinary polling divisions, and adding a new subsection under section 168 to allow for the splitting of advance polling districts.

Finally, section 125.1 provides that notice of the addresses of ordinary polling stations must be provided to candidates and any parties running candidates in the electoral district by the 24th day before polling day, and changes must be provided by the 5th day before polling day. This section requires both electronic and written notice, which is unnecessary. It should simply provide for notice, which in most cases will be more efficient to provide electronically.

An equivalent provision should be created for notice of advance polling stations, but the deadline in this case should be the 15th day before polling day (the 5th day before the first day of advance polls).

Under this provision, when a family member or friend assists an elector with a disability in voting, the family member or friend must take an oath. The oath sets out the following: that the assistor will mark the ballot paper as directed by the elector; will keep the elector's choice of candidate secret; will not try to influence the elector in making that choice; and, if assisting as a friend, has not so assisted another person during the current election.

It is sufficient to have the election officer, acting on the CEO's instructions, inform assistors that they must not influence the elector's choice, must mark the ballot as directed and must keep the elector's choice of candidate secret. The use of an oath is unnecessary in this circumstance and creates an air of formality and intimidation that is not consistent with the goal of the provision, which is to help electors vote.

Under a requirement enacted in 2014, an external audit was conducted during the 42nd general election to assess whether certain poll workers properly performed a specified set of duties. The Act calls for this audit to take place in every election.

The utility of repeating exactly the same audit in every general election and by-election is unclear at best. The CEO can have poll workers' performance audited at any time, including by an external auditing firm, should this be desirable. The CEO has in the past relied on independent audits where appropriate. Such audits are not limited to the very specific audit scope in the Act, which means they can be targeted to continuously improving electoral operations.

Division 5 of Part 11 sets out the Special Voting Rules that allow incarcerated electors to vote. It applies specifically to electors confined in "correctional institutions"; however, the Act does not define this term. As a result, Division 5 does not necessarily apply to some electors who should logically be covered, insofar as they are confined and cannot vote at the polls nor easily vote by regular mail.

The term "correctional institution" clearly includes a provincial penitentiary. However, it does not clearly include a secure youth custody facility, or a jail or remand centre where electors remain while awaiting trial. Under the current rules, electors confined in these institutions do not have the same opportunity to vote as electors in penitentiaries.

The Act should be amended to add a definition of "correctional institution" that expressly enumerates what types of institutions are contemplated for the purposes of Division 5. The definition should be broad enough to include electors confined in a variety of institutions, such as a prison, jail, correctional centre, correctional facility, penal institution, secure youth custody facility, detention centre, remand centre, lock-up or other place designated or established pursuant to an Act of Parliament or of a legislature for the confinement of an elector upon arrest, pending or following a court hearing.

The definition should not include residential facilities that provide accommodation to offenders who are on parole, conditional release or temporary absence, or living in a halfway house, as such persons are not confined and are able to vote at the polls or by mail. It should also not include addictions treatment facilities, and hospitals or other health institutions operated for the care of people who have a disease, injury, sickness, disability or mental disorder. These electors can be served as part of Elections Canada's hospital voting program.

Finally, sections 246 and 247 should be amended to ensure that the references to responsible ministers cover all provincial ministers who have oversight over potential electors in Division 5, including youth.

Division 2 of Part 11 sets out the Special Voting Rules that apply to CF electors. It is very prescriptive and relies on paper-based processes, making it difficult to improve efficiency using technology. In addition, whether they are deployed or not, CF electors may only vote under Division 2 (with limited exceptions). This is confusing for some of them and means they do not have the same voting opportunities as their families and neighbours.

When it was first established, voting by special ballot was a privilege extended only to CF electors. However, the rules that apply to them are stuck in the past. Compared to today's process for other electors who wish to vote in an RO office or by mail, the rules that apply to CF electors are unduly restrictive rather than beneficial.

Division 2 of Part 11 should be reviewed, in consultation with the Canadian Armed Forces, to determine the best way to facilitate voting by CF electors. The Canadian Armed Forces agrees with this recommendation.

If an overall review is not approved, the specific amendments to Division 2 of Part 11 recommended in this table (Recommendation B22) and in Table C—Minor and Technical Recommendations (Recommendations C14–C17) should be made.

The Act provides that an application to vote by special ballot must be received by the SVRA or RO no later than the 6th day before polling day. This means that special ballot voting cannot be initiated after this time, including in an RO office.

Presumably, this deadline was set to allow enough time before polling day for updating the lists of electors to indicate who has received a special ballot. However, if electronic lists are used at the polls in the future, it may be operationally feasible to add updates about special ballot voting closer to polling day.

This provision deals specifically with the way that election advertising is transmitted, and not with its content. It is not clear what the prohibition is meant to cover beyond what is already prohibited by the Policy on Communications and Federal Identity and the Directive on the Management of Communications. The provision appears to have been created in the 1970s to complement an advertising blackout at the start of the election period, which no longer exists.

Any use of Government of Canada resources to conduct election advertising is a contribution by the person using those resources and is addressed by other provisions.

The first person who transmits the results of an election survey (for example, an opinion poll), or anyone else who transmits them within 24 hours, must provide background information about the survey. This includes the date on which the survey was conducted, the population surveyed and the margin of error.

For all means of transmission other than broadcasting, additional information must be provided, including the wording of the questions asked and how to obtain a detailed written report on the survey. No matter how the survey results are transmitted, the survey sponsor must make this report available to anyone upon request.

The requirement for a written report is onerous. It would be less of a burden on the sponsor, and more useful to electors, if the report were in electronic format. A link to the report or information on how to obtain it could be provided in the case of all means of transmission, including broadcasts.

The requirement for survey sponsors to provide additional information in a written report should be deleted. Instead, the same information should be made available in electronic format.

The obligation to provide a website address or link to where the additional information can be found should apply to all persons, including broadcasters, who first transmit the results or who transmit them within the next 24 hours.

The Commissioner agrees with this recommendation.

Unlike candidates, political parties are not required to provide documents evidencing the expenses set out in their election expenses return. This is despite the fact that Elections Canada needs such documents to properly review party returns to ensure that the transparency sought by the Act is being achieved, and despite the fact that parties receive tens of millions of dollars in direct public subsidies every election as well as millions in public subsidies in the form of substantial tax credits for their contributors.

The CEO has twice previously (in 2005 and 2010) recommended that parties, like candidates, be required to provide some evidence of their expenses. This is in the interests of transparency and would ensure that the subsidy is being properly paid out. As an alternative, the CEO recommended in 2010 that party auditors be given increased responsibility to consider whether the parties they audited have complied with their statutory reporting obligations.

In 2014, the Act was amended to enhance party auditors' responsibilities. Nonetheless, Elections Canada continues to believe that, as a matter of transparency and because of the large amount of public money at issue, parties should be required to produce documentation evidencing the expenses claimed in their returns on the CEO's request.

Currently, EDAs are specifically prohibited from incurring election advertising expenses during an election period. Elections Canada takes the position that if other spending by an EDA during the election period promotes the candidate or party, such an expense is an election expense of the candidate or the party.

The Act should indicate more clearly that EDAs are not allowed to incur any expense that would otherwise be an election expense of a candidate or party—that is, not only is election advertising prohibited, but also such things as get-out-the-vote calls.

The Act should be amended to provide that candidates may incur election expenses only in accordance with written authorization from the official agent, as is already the case for any other person authorized by the official agent to incur expenses on behalf of the campaign. This would make it easier to enforce the existing prohibition against exceeding the limit. The Commissioner agrees with this recommendation.

Parliament may also wish to consider a similar amendment with regard to the election expenses of political parties.

As the Commissioner recommended to the CEO, the offence provisions at paragraphs 497.4(1)(p) and 497.4(2)(r) should be made consistent with the prohibition by referring to the candidate as well as the official agent. The CEO also made this recommendation in 2010.

A similar amendment should be made to the equivalent provision relating to nomination contestants (paragraph 497.3(1)(s)). The CEO also made this recommendation in 2010.