Compliance Review: Final Report and Recommendations
Compliance Review Context
This compliance review stemmed from a legal challenge regarding the conduct of the May 2, 2011 federal general election in the Ontario electoral district of Etobicoke Centre.
Ontario Superior Court Decision
A judicial recount for that election had declared the winning candidate to be the elected Member of Parliament by a margin of 26 votes. The second place candidate applied to the courts requesting the election be overturned on the basis that "irregularities" had affected the result.Footnote 1
The case was heard by Justice Thomas R. Lederer of the Ontario Superior Court of Justice, who on May 18, 2012 issued a decision declaring the results of the contested election to be "null and void".Footnote 2
In the written judgement, reasons to void the election centred on evidence that election officers had made a significant number of serious administrative errors. This was determined through a detailed review of documented voting records in ten out of that district's 236 polling stations.
The judge found that, in these ten polls, procedural "irregularities" invalidated 79 votes. Some 52 votes were invalid because election officers made serious errors in the administration of voter registration procedures, and the remaining 27 cases involved serious errors within the application of identity vouching procedures.
Of the 79 votes this judgement "set aside", 41 were deemed invalid because no required documentation could be found. Twenty-seven other votes were rejected because individual election officers had improperly recorded legally "material" information, or not recorded it at all. Eleven votes were rejected because election officers had not applied a legal requirement to ensure that each person vouching for the identity of another voter was first established to be a registered voter, and confirmed to be living within the same polling division boundaries as the voter for whom they were vouching.
Because 79 "irregular" votes within these ten polls exceeded the 26-vote plurality that had originally decided the election, and citing case law precedents that established "if the number of irregular votes exceeds the plurality of votes cast, the election cannot stand",Footnote 3 Judge Lederer declared the Etobicoke Centre election overturned.
It should be noted this decision was made on the basis that important procedural requirements had not been met, and not due to evidence indicating that ineligible voters had been permitted to vote.
Supreme Court of Canada Decision
The sitting Member of Parliament for Etobicoke Centre promptly appealed the judgement of the Ontario Superior Court to the Supreme Court of Canada.
The Supreme Court's October 25, 2012 judgement was a split 4/3 decision, ruling in favour of the appellant and confirming the original election result in Etobicoke Centre. Most appeal argument centred upon exactly what constituted "irregularities that affected the result of the election".Footnote 4 The majority and dissenting views cast markedly different perspectives on that central argument.
The majority held that "only votes cast by persons not entitled to vote are invalid".Footnote 5
The minority view was that irregular votes should be considered invalid, and that sufficient proven administrative "irregularities" were a valid reason to annul an election. They stated:
The term "irregularities" . . . should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial.Footnote 6
The majority view did not disagree with this approach to defining "irregularities". However, with the view that enfranchisement is the paramount democratic principle to protect, they established that two tests need to be met in order to demonstrate that an "irregularity" affected the result of an election.
First, it is necessary to show that a statutory safeguard associated with establishing entitlement to vote was not properly administered. Second, the judge must decide, based on all evidence before the court, whether a person who voted was not entitled to.
The majority ruling found no proof that administrative breaches of statutory provisions had resulted in ineligible persons voting. On this basis, the evidence before the Court was deemed not to meet the test for annulment of an election prescribed by the Canada Elections Act.
Nonetheless, the case found that election officers made many serious errors in their duties on Election Day in the 2011 Etobicoke Centre election, and the Supreme Court made it clear that such errors in other circumstances could contribute to a court overturning an election.
Public Trust at Risk
Perhaps of more importance than the legal precedent established, publicity surrounding the court case brought into question the impact of administrative errors on the integrity of the electoral process. Election Day administration is widely understood by the public to involve election officers ensuring that every participating elector meets certain registration and identification requirements before they are issued a ballot. These are widely recognized as essential procedural safeguards that must be enforced consistently for election results to be considered legitimate and meaningful.
Citizens' trust in their electoral institutions and democratic processes are put at risk when established voting rules and procedures are seen not to be followed. Even the perception of problems can be extremely detrimental to this trust. Public trust in an electoral process is fundamental to perceptions about the legitimacy of democratic governance.
The Compliance Review
It was within this overall context that the compliance review was initiated. While the court case was still underway, Marc Mayrand, the Chief Electoral Officer of Canada, publicly committed Elections Canada placing "a major priority on strengthening measures aiming to improve compliance with procedures and standards applicable on voting days".
He went on to outline the foundations upon which the review was subsequently designed:
Our intention is threefold: first, to review the voter registration and voting process based on what transpired in Etobicoke Centre; second, to assess the effectiveness of existing checks and balances; and third, to engage key stakeholders in implementing solutions for the 2015 election.Footnote 7
Over the summer of 2012 Elections Canada managers agreed to a general process and timetable for the compliance review, and selected an independent Reviewer. The Reviewer's mandate appears in Annex F of this report; the Reviewer's biography is in Annex G.
The first task the Reviewer undertook was to develop a detailed workplan proposing the review's exact approach, stakeholder engagement strategy, analysis methods and support requirements. The workplan for the compliance review was agreed to on September 27, 2012 and work started immediately.
The workplan was founded on information gathering. The Reviewer started with interviews of election administrators and officials at all levels federally and in various provinces and territories. Then came design and assignment of a formal research project to study 'best practices' for election officer compliance at national and international levels.Footnote 8 A historical analysis of the evolution of the legislated duties of federal poll officials was also designed, and commissioned to an academic authority.Footnote 9 The Reviewer himself undertook a detailed analysis of legislation related to compliance requirements, and a comprehensive review of election officer procedures and training materials.Footnote 10
A detailed "conformity audit" conducted on the voting records of the ten disputed polls in Etobicoke Centre was followed with a random 1,000-poll national audit, as well as audit measurements of conformity with Election Day procedures in three federal by-elections held on November 26, 2012. Those audits, which confirmed election officer non-compliance to be a systemic problem in federal elections across Canada, are summarized in Annex C.
First-hand information gathering and detailed election observation was conducted during by-elections in the ridings of Durham, Calgary Centre and Victoria in October and November, 2012. Further interviews were conducted with election administrators who managed those elections, and the Reviewer observed and interacted with election officers, in all roles at numerous locations, during training sessions and on Election Day.
The review framework's second structural component was a series of activities designed for the review process to engage genuinely and meaningfully with representatives from key stakeholder groups. These groups were identified as:
- political party technical experts (on elections);
- front-line election workers from the three by-elections;
- federal election field management personnel;
- Chief Electoral Officers from provinces/territories across Canada; and
- senior management and staff at Elections Canada headquarters.
Annex E lists representatives from each of these groups that were involved in compliance review consultations.
Face-to-face compliance workshops were organized and held with members of the first three stakeholder groups listed, with each session facilitated by the Reviewer. These focused on causes of non-compliance by election officers, and established what types of effective solutions are available to implement in time for the 2015 general election. Group workshop participants tackled the compliance problem with great energy and enthusiasm, providing rich detail and significant insights.
The third major element in the review workplan called for an "Interim Report"Footnote 11 to document and distill what had been learned to that point through the process of gathering information and engaging stakeholders. The Reviewer prepared this report for translation and distribution in both official languages to all review participants and members of stakeholder groups, who received it in the third week of January, 2013.
The Interim Report served as a way to develop a more complete shared understanding, between review participants, of the causes of non-compliance and of potential solutions to the problem. Secondary purposes were: to obtain critical review and feedback on anything the report may have overlooked; to identify any other additional causes of non-compliance; and to have review participants state the solutions they preferred in the context of what they had learned to that point. Most of the 105 review participants who received the Interim Report offered superb detailed feedback.
Final Report and Recommendations
The review planning framework's fourth and final structural element called for an examination and analysis of all feedback provided by review participants. It also allowed time for further detailed research as deemed necessary and, finally, for the Reviewer to develop and document his findings, make recommendations and prepare and submit this report.
Return to source of Footnote 1 Section 524(1)(b) of the Canada Elections Act states: "Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that . . . there were irregularities, fraud or corrupt or illegal practices that affected the result of the election."
Return to source of Footnote 2 Wrzesnewskyj v. Attorney General (Canada), 2012 ONSC 2873 (CanLII); available online at: http://www.iijcan.org/en/on/onsc/doc/2012/2012onsc2873/2012onsc2873.html
Return to source of Footnote 3 Wrzesnewskyj v. Attorney General (Canada), at para. 71 citing O'Brien v. Hamel, supra, at para. 25.
Return to source of Footnote 4 Canada Elections Act, sec. 524(1)(b); available online at: http://www.elections.ca/content.aspx?section=res&document=index&dir=loi/fel/cea&lang=e
Return to source of Footnote 5 Supreme Court of Canada, Opitz v. Wrzesnewskyj, 2012 SCC 55; Introduction of majority opinion, second para., page 6; available online at: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/12635/1/document.do
Return to source of Footnote 6 Opitz v. Wrzesnewskyj; Introduction of dissenting opinion, third para, page 10.
Return to source of Footnote 7 Parliament of Canada, House of Commons, Standing Committee on Procedure and House Affairs, Evidence, Tuesday, May 29, 2012. Available online, between markers 1140 & 1145, at: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5614754&Language=E&Mode=1&Parl=41&Ses=1
Return to source of Footnote 8 Best Practices for Ensuring Compliance with Registration and Voting Procedures, prepared by Rohan Kembhavi, Elections Canada Policy and Research Analyst. Available online at: http://www.elections.ca/content.aspx?section=res&dir=cons/comp/bp&document=index&lang=e
Return to source of Footnote 9 'The Evolution of the Duties to be Fulfilled by Poll Staff with Regards to Registration and Voting on Polling Day and Advance Polling Days, 1920 to 2012', prepared by Professor Louis Massicotte, Université Laval.
Return to source of Footnote 10 See Annex A: Table of Legislated Responsibilities for Election Officers and Annex B: Polling Station Process Flow.
Return to source of Footnote 11 Compliance Review – Interim Report. Available online at: http://www.elections.ca/content.aspx?section=res&dir=cons/comp/crir&document=index&lang=e