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

The current highly prescriptive polling place model was created in the 19th century and is increasingly unable to meet the needs of the 21st. What may work at a small polling place with a single polling station serving 200 electors may not work in a large central polling place serving 4,000 electors.

To modernize services and improve efficiency, while preserving the secrecy and integrity of the vote, there needs to be more flexibility in the organization of functions at polling places.

Elections Canada is unable to streamline the voting process or adapt it to modern circumstances, in part because of restrictions in the Act on who may perform certain tasks in the process. For example, dozens of tasks must be performed by the DRO, and others by the poll clerk, with respect to each elector at a particular polling station. This creates unnecessary bottlenecks at some polling places because there is a limit to how much a single person can do.

In order to design polling places in a way that meets the needs of the elector, it is necessary to break the link in the Act between tasks and specific election officers.

The specific provisions respecting the appointment of DROs, poll clerks, registration officers, information officers, central poll supervisors, revising agents and persons responsible for maintaining order (see sections 32, 33–39 and 124) should be deleted. The Act should instead provide that the RO shall, in accordance with the CEO's instructions, appoint sufficient election officers to carry out the tasks prescribed by the Act.

Wherever the Act specifies that one of the above-listed election officers is to carry out a task, reference should be made instead to "an election officer" or "two election officers", as the case may be (see sections 43, 64, 97, 100, 101, 107, 119, 120, 135, 138, 140–144, 148.1–152, 154, 156, 157, 160–162, 164, 167, 169, 173–176, 276, 283–285, 287–290, 296, 301, 304, 479, 484, 502 and 549).

It should be clear that, in certain circumstances and with CEO approval, ROs would be authorized to hire election officers prior to the issue of the writ, to facilitate their training and preparation.

These changes will give the CEO the flexibility to organize tasks at the polls and during revision in a way that accounts for local factors, while ensuring the secrecy and integrity of the vote.

The definition of "polling station" in the Act prevents Elections Canada from making the voting process more efficient, while maintaining the secrecy and integrity of the vote.

Electors from a particular polling division must cast their ballot at a specific table (polling station) in a polling place. An elector may cast his or her ballot only at that table, even if it has a long lineup and no other polling station in the polling place is busy. This causes understandable frustration for electors and stress for election workers. The ability to use electronic lists makes the assignment of an elector to a particular table unnecessary, as poll workers at any table would be able to look up and cross off the name of an elector in any polling division.

To make the voting process more efficient while preserving the secrecy and integrity of the vote, the requirement that electors vote at a specific table in a polling place should be ended. The Act should still provide that all electors in a polling division are assigned to a specific polling station; however, that polling station would not be the particular table where the electors must vote, but rather the entire polling place. For example, where currently multiple polling stations are grouped together in one large room, such as a school gym, the entire room would be the polling station under the recommended process.

In the text of the law, this result could be achieved by amending section 120 so that instead of establishing one polling station per polling division, an RO would be required to assign the electors from polling divisions to a polling station.

This recommendation leaves open the possibility of reporting results at a more detailed level, as with the current poll-by-poll results. However, to fully achieve this result, the form of the ballot in Form 3 of Schedule 1 should be modified to require that the polling division be indicated on the ballot.

Consequential amendments would also need to be made to sections 106 and 108 so that the lists of electors would include all electors for the polling station, not just a single polling division. Provisions related to splitting polling stations and establishing central polling places (subsections 120(2) to (4) and 122(1), and sections 123 and 124) could be repealed as they would no longer be relevant.

The voting process currently has seven different possible oaths for electors to take, both oral and written, with warnings about the penalties for associated offences under the Act. These oaths deal with somewhat different situations, but essentially all aim to provide an additional piece of evidence that a person is in fact qualified as an elector and entitled to cast a ballot. Having so many different oaths causes confusion for election officers, may lead to unintentional non-compliance and slows the process for all electors.

Elections Canada wishes to reduce the number of different oaths to simplify the work of election officers while maintaining the integrity of the process. To this end, the CEO needs the flexibility to determine the content of oaths.

Some electors continue to have difficulty proving their address at the polls using the documents permitted by the Act. Such electors may still vote, but only if they show two pieces of authorized identification bearing their name, and have their name and address attested to by another elector who lives in the same polling division. A person may attest for only one other elector.

These requirements for qualified electors who lack documentary proof of address are onerous and may leave them unable to vote. Although the number of such electors is small, any time an elector is disenfranchised, it is a concern. Allowing a person to attest to the address of more than one elector—at least in some circumstances—would increase certain electors' access to voting and presents little risk.

The CEO currently authorizes pieces of identification for registration and voting purposes. The CEO could also be given the power to authorize electors to attest for more than one other elector in certain defined circumstances.

1. electors who reside in facilities that house such groups as seniors, individuals with physical or mental disabilities and homeless people. The CEO could also establish who may attest in such circumstances (nurses, social workers, etc.);
2. individuals for whom the attestor is authorized to make decisions about personal care;
3. residents of First Nations reserves;
4. residents of women's shelters, residential rehabilitation centres and Friendship Centres; and
5. persons in the attestor's immediate family who reside at the same address.

Assistance with voting at the polls or in an RO office may currently only be provided to electors who are unable to read or, because of a physical disability, are unable to vote in the manner prescribed in the Act. The provisions do not make assistance available to all electors with physical disabilities or to those with intellectual or psychosocial disabilities that might limit their ability to vote independently. Assistance at the polls should be available to all electors with disabilities, regardless of the nature of their disability.

For special ballot voting in an RO office, while electors can rely on an election officer for assistance, they currently cannot rely on a friend, spouse or other person known to them, as is possible at a polling station. The latter option should be permitted.

The Act should allow assistance to be given at the polls or in an RO office to any electors who indicate that, because of a disability, they require assistance to vote.

Electors voting by special ballot in an RO office should be able to rely on the same people for assistance as at a polling station.

Transfer certificates are available to electors with a physical disability whose polling station does not have level access. By restricting transfer certificates to electors with physical disabilities, and only in cases where the elector's polling station lacks level access, the provision fails to capture all instances where an elector may wish to vote at a different polling station because of a disability.

In addition, the application for a transfer certificate must be hand-delivered to the RO or ARO. This is a burdensome process and an unnecessary impediment to electors who are seeking accommodation.

The Act should be amended to permit curbside voting by electors with any type of disability. The procedure specified in the Act should provide for the same rigour (secrecy of the vote, etc.) that applies to regular voting at polling stations.

The provision should set limits on how far away from the building the voting may take place. Also, a record of curbside voting should be made in the poll book beside the name of each elector who uses this option. At least two election officers should be present for curbside voting, and candidates' representatives should be invited to attend.

When an election is called, Elections Canada sends "ballot kits" to international electors. Ballot kits consist of a ballot, an inner envelope and an outer envelope. The kits are also provided to local and national electors who apply to vote by mail during the election.

A 36-day election campaign is a short period for electors to apply for a kit, be sent their kit and return their ballot. This is especially so when the elector lives in a remote country or one with less efficient mail service. In every election, many special ballots cannot be counted because they arrive at Elections Canada after polling day. In the 41st and 42nd general elections, the number of special ballots not received on time was 1,825 and 3,229, respectively. The number of ballots that were not returned was 7,636 and 12,909, respectively. It is likely that at least some of these ballots were not returned because electors knew their ballot would not arrive by polling day.

To quicken the vote-by-mail process, the Act should be amended to remove barriers to having electors receive or download their own special ballot electronically. Electors who choose this option would have to return their ballot and a completed declaration using their own inner and outer envelopes, according to instructions that would preserve the secrecy and integrity of the vote.

The necessary amendments are as follows: Form 4 of Schedule 1 would need to be modified to remove the form of the back of the ballot, as ballots printed by electors would be one-sided. Furthermore, sections 227, 228, 237 and 239 would need to allow for the possibility of declarations and ballots being sent to electors electronically, and of the declarations and ballots being returned by electors in inner and outer envelopes supplied by the elector. Lastly, sections 267 and 274 to 278 would need to reflect that not all special ballots being counted would be contained in outer envelopes as defined in section 2. Some would be in envelopes supplied by electors.

Electors should continue to have the option to apply for a traditional mail-in ballot kit.

Voting prohibitions and prohibitions related to improperly requesting and handling a ballot are scattered throughout the Act. There is a need to better organize these provisions and make them consistent. In some cases, it is not clear that a prohibition applies to all methods of voting. There is also duplication of prohibitions and partial overlap.

The Commissioner has raised some additional difficulties with respect to enforcing these prohibitions. First, the prohibitions in section 5 on voting when not qualified require that a person know the state of the law—that is, what makes someone a qualified elector—and this is generally contrary to the criminal law principle that ignorance of the law is no excuse.

Second, having the words "knowing", "knowingly" or "wilfully" in a prohibition provision, as opposed to the provision that creates the offence (sections 480 to 499), may require a prosecutor to prove that an offender knew about or was wilfully blind to the elements of the offence for which knowledge is required.

Third, the current provisions of the Act do not adequately address the sharing of photos of ballots. The Commissioner noted this deficiency in his 2016 annual report. These provisions need to be amended to protect ballot secrecy and reduce opportunities for bribery and intimidation.

The various sections in the Act that protect the secrecy of the vote and prohibit improper acts related to requesting and handling ballots should be grouped together in their own part of the Act so that they can apply to voting by any method, based on the facts of a particular situation. Duplication and overlap should be removed.

Section 5 should be rewritten to prohibit a person from voting when he or she is not qualified as an elector or is disentitled from voting. In addition, it should be amended to prohibit a person from influencing another person to vote when he or she knows that the other person is not a Canadian citizen or at least 18 years of age on polling day. This would remove the need to prove that the person knew the requirements of the law.

The provisions protecting the secrecy of the ballot should include a prohibition on taking, disclosing or sharing a photograph or digital image of a marked ballot, including on social media. They should indicate that the prohibition applies during voting or after voting has occurred. It should be clear that the prohibition applies to individuals sharing an image of their own marked ballot or of another person's marked ballot. There should, however, be an exception to allow electors with a visual impairment to take and use a photo of their marked ballot, but only for the purpose of verifying their vote. The aim is to help these electors vote independently.

The associated offence provisions in Part 19 of the Act should also be amended to reflect the changes made to the prohibition provisions.

The Commissioner agrees with these recommendations.

The residency requirement for ROs, AROs and AAROs should be replaced with a requirement that they reside in the electoral district where appointed or in an adjacent electoral district.

In addition, a technical error in this provision should be corrected. As a result of a 2014 amendment that renumbered the election officer positions listed in subsection 22(1), field liaison officers are now unintentionally covered by the electoral district residency requirement. This is not possible given that their function is to coordinate between a number of electoral districts. Field liaison officers should not be subject to any residency requirement.

The current system for filing candidate nomination papers is cumbersome, with unnecessary requirements that create an administrative burden for both the prospective candidate and the RO charged with verifying that all requirements have been met.

To present their nomination, candidates must obtain the signatures of 100 (or, in some cases, 50) electors in their electoral district and must swear an oath consenting to the nomination in the presence of a witness. Nomination papers must be filed by the witness, who must verify the addresses of the electors and swear an oath before the RO. Candidates may not file their own nomination paper.

These requirements reflect an outdated approach to candidacy, in which candidates are nominated by others instead of registering themselves. Although the requirement for signatures is aimed at discouraging frivolous candidacies, it is not clear that it does so. The signers do not need to state that they support the candidate, and many candidates receive fewer than 100 votes, suggesting that those who signed did not in fact support the candidate. The signature requirement is an administrative burden for candidates and election workers, whose time would be better spent focusing on other tasks. It also creates an obstacle to an efficient electronic nomination process.

The nomination process is further muddled by the Act prescribing a process for faxed nominations that has somewhat different requirements (for example, the witness does not have to swear an oath before the RO). This leads to confusion for prospective candidates and election workers.

The Act uses criminal sanctions, almost exclusively, to enforce compliance with its provisions. This is not an appropriate approach in many situations, especially in the complex regulatory regime that applies to political financing. In many cases of non-compliance, neither the degree of harm caused nor the level of wrongdoing merits the stigma of a criminal prosecution. As a result, non-compliance is often not effectively addressed. When it is, the criminal process does not provide for a timely resolution. A lack of action in some cases of possible wrongdoing and a delayed response in others reduces the deterrent effect and creates a perception of unfairness among those who "played by the rules".

Canadian regulatory regimes are increasingly using AMPs as a way of promoting compliance. Under an AMPs regime, whether or not a prescribed prohibition or requirement has been contravened is established through an administrative, as opposed to a judicial, process. The purpose of AMPs is to increase compliance with a regulatory regime by creating an incentive to comply: namely, to avoid incurring a monetary penalty. The use of AMPs is a more efficient, immediate and, in many cases, effective approach to achieving compliance than the possibility of a criminal prosecution. It is also less stigmatizing and punitive than a prosecution in the criminal courts, as individuals or entities subject to an AMP will not be imprisoned or have a criminal record. AMPs help to provide a broader range of appropriate enforcement responses to unlawful conduct.

Adding AMPs to the Act would provide an efficient and effective administrative tool to deter unlawful activity; it would assist in efficiently regulating the political financing and communications regimes. AMPs would be available as an alternative to criminal prosecution for an offence.

An AMPs regime should be developed for Parts 16, 17 and 18 of the Act, which regulate political financing and communications, as described in the body of this report.

The Commissioner agrees with this recommendation.

If a registered EDA fails to comply with its financial reporting obligations by filing its financial return after the applicable deadline, its ability to issue tax receipts should be suspended until all its returns are received. The Act should also be amended to prevent a newly registered EDA from issuing tax receipts for four years (one electoral cycle) if the previous EDA for the same party in the same electoral district did not comply with its financial reporting obligations. The ban could be lifted if the outstanding returns are received. As well, the Act should be amended to make it an offence for EDAs to issue tax receipts after having received a notice of non-compliance with filing obligations.

The registration of a new EDA should be prohibited if it has assets that cannot be traced back to contributions or transfers made in compliance with the Act. This would prevent a deregistered EDA that failed to file its financial return from re-registering with all the assets of the previous EDA (as well as new, unreported assets).

The Commissioner agrees with these recommendations.

Candidates are required to appoint an auditor at the outset of their campaign, prior to receiving contributions or incurring expenses. The reports of external auditors are increasingly expensive for candidates and, in the case of candidates with few financial transactions, they do not add a great deal in terms of transparency. At the same time, Elections Canada is frequently informed that the production of a return is delayed because of the length of time needed for the auditor to review the documents.

In 2010, the CEO recommended that the requirement of producing an audit report be eliminated for all candidates who incurred expenses or received contributions of less than $10,000. Nomination contestants are exempt from the requirement to appoint an auditor and produce an audited campaign return if they accepted contributions and incurred expenses under $10,000. For EDAs and leadership contestants, the threshold is $5,000.

As well, the subsidy provided to auditors of candidates and EDAs has not been adjusted for inflation since 2003, while there is currently no subsidy for auditors of nomination contestants.

Under section 511, in order to lay a charge for prosecution, the Commissioner is required to obtain the approval of the Director of Public Prosecutions. This is an unusual requirement for a federal investigator, and means that the Crown must undertake a separate and at times lengthy review of all the evidence in the case. It adds an undue delay in processing cases and is not operationally efficient. Normally, charges are laid in advance of the Crown review and are later stayed if the Crown concludes that it is not in the public interest to proceed with a prosecution or that there is no reasonable prospect of conviction.

It is important to ensure that charges are not laid under the Act for partisan reasons, and there is a separate provision (subsection 512(1)) that prohibits a person from laying a charge without the prior written consent of the Director of Public Prosecutions. In the execution of his independent, non-partisan functions under the Act, the Commissioner should be exempt from this requirement.

Compared to the definition of "election expense" that applies to candidates, the definitions of "leadership campaign expense" and "nomination campaign expense" are problematic in that they do not include expenses incurred outside the contest period, even if the goods or services are used during the contest. Nor do these expenses include non-monetary contributions or transfers. This has consequences for the coherence of the political financing regime applicable to leadership and nomination contestants. Contestants are able to use unregulated money to fund much of their campaigns and to avoid reporting campaign-related expenses. Moreover, contestants are prevented from using campaign funds to pay for expenses directly related to the campaign if these expenses were incurred prior to or after the contest period (for example, audit fees or office rent). In his 2016 annual report, the Commissioner noted that he received complaints from members of the public about nomination contestants underreporting their expenses. On being informed of the Act's lack of regulation for significant expenses incurred by campaigns, the complainants questioned the integrity of the political financing system applicable to contestants.

For more on this issue, see Interpretation Note 2014-01, Definition of Leadership Campaign Expenses and Nomination Campaign Expenses from August 2015.

The introduction of contribution limits has led to unintended and undesirable impacts respecting some kinds of expenses. This is particularly the case with certain expenses that are currently classified as "personal expenses"—specifically, childcare expenses and expenses to care for a person with a disability that candidates incur as an incidence of their candidacy.

Parliament has categorized these expenses as personal expenses. This means the expenses are not subject to the spending limit, but may still be reimbursed, whether incurred inside or outside the election period. The aim is to reduce barriers to participation for persons who need to incur such expenses. However, contribution limits now prevent this objective from being attained. Because these expenses are regulated, they have to be paid using contributions that the candidate receives; however, the source and amount of contributions are restricted. This reduces the ability of candidates to pay for these expenses, including from their own resources.

Candidates who incur litigation expenses in relation to an election face a similar difficulty. Litigation expenses may arise from a contested election, a judicial recount, or an application to correct a political financing document or to extend a filing deadline. As with childcare or disability expenses, litigation expenses must be paid using regulated funds. This means that a person may be denied legal representation in such a matter even if he or she is able to pay for it personally.

A separate matter, but one that is related to personal expenses, concerns the treatment of travel expenses. Currently, because travel expenses are a subcategory of personal expenses, even expenses for travel occurring outside the election period are reimbursed. Only expenses for travel that occurs during the election period should be reimbursed.

Expenses related to childcare and care for a person with a disability (whether candidates themselves or another person for whom the candidate provides care) should be regulated in a way that achieves Parliament's objective. The Act should be amended to clearly indicate that candidates may opt to pay childcare and disability expenses, which would normally constitute electoral campaign expenses, using their personal funds. If the campaign chooses to use regulated funds, the expenses (and related contributions) must be reported and should be eligible for reimbursement as personal expenses, as they are now. In addition, Parliament should consider increasing the level of reimbursement available for these expenses, given their importance in enabling certain individuals to run as candidates. A reimbursement of up to 90% of these expenses should be considered.

A similar amendment, without reference to a reimbursement, should be made for candidates' litigation expenses to ensure that contribution limits are not a barrier to the right to counsel. Candidates should be able to choose whether or not to use regulated funds for the legal process. This includes litigation expenses for recounts, contested elections and proceedings related to the CEO's application of political financing provisions, including extension requests. As is the case now, such expenses would not be reimbursable, nor subject to the spending limit.

Because legal fees can be quite significant, the Act should require campaigns to file a separate report in this area along with the candidate's return. The report would set out any litigation expenses and, where the fees are not paid from the campaign bank account, the payment sources. This would ensure transparency with respect to the fee amounts and how they are paid.

Finally, while all travel expenses should continue to be treated as campaign expenses so they must be paid using campaign funds, only expenses for the portion of travel that occurs during the election period should be reimbursed.

The provisions of the Act dealing with broadcasting need to be updated to make them fairer and more coherent. The regime is complex; it no longer covers an adequate range of players, since the free time rules are limited to "networks" only; and it continues to unduly favour larger parties over smaller ones, which is a chronic irritant for smaller parties.

When the system was originally enacted, there was a small number of registered parties. Currently, there are 19. The Broadcasting Arbitrator is required to allocate paid time among all of these participants, even though many of them do not have the resources to buy broadcast advertising. The free time allocation is linked to the paid time allocation, however, so all parties must participate in the latter. In addition, the statutory formula for paid time allocation relies heavily on past electoral performance. The Broadcasting Arbitrator is permitted to modify this allocation if, in his view, it would otherwise be "unfair to a registered party or contrary to the public interest". He has used this authority consistently since his appointment in 1992. Most recently, he modified the allocation so that 50% of the paid time would be available to all parties equally, with the other 50% being allocated using the statutory formula (that is, on the basis of success at the past election).

Broadcasters are required to make paid time available to parties during prime time. They must also make the paid time available at the lowest applicable rate, but in practice, broadcasters interpret this rule as permitting rates that are significantly higher than those applied to commercial advertisers who are able to buy advertising months in advance.

The CEO and Broadcasting Arbitrator made detailed recommendations on this subject in 2001 and 2005. Elections Canada recently sought input from the CRTC, the Canadian Association of Broadcasters and CBC/Radio-Canada on the earlier recommendations. The responses received from the Canadian Association of Broadcasters and CBC/Radio-Canada were also shared with the Broadcasting Arbitrator, who provided his own response to their suggestions.

The CEO and the Broadcasting Arbitrator continue to support the majority of recommendations previously made in this area.

First, the paid and free time allocation processes should be uncoupled.

Second, the allocation regime for paid time should be modified. Instead of 390 minutes of paid time being allocated among political parties in accordance with a complex statutory formula, each party should be given the same entitlement to 100 minutes of paid time. A cap of 300 minutes should be set on the total amount of paid broadcasting time that any station must sell to political parties. Where the requests from all parties to one station amount to more than 300 minutes, the time should be pro-rated, with any disputes to be resolved by the Broadcasting Arbitrator. Parties should also have the right to purchase additional time, subject to availability, as is currently the case.

Third, paid time should be provided at the "lowest unit charge", which should be clearly defined to mean the lowest rate charged to non-political advertisers who receive volume discounts for advertising purchased months in advance. The Canadian Association of Broadcasters suggests that paid time be provided "at the same unit rate" to all parties, without any comparison to other potential purchasers. Neither the CEO nor the Broadcasting Arbitrator supports this suggestion.

Fourth, the obligation to provide free broadcasting time should no longer apply only to "networks". Instead, it should apply, through conditions of licence under the Broadcasting Act, to all conventional television stations that broadcast news or public affairs programs, all news/talk radio stations, and all specialty television stations that focus on news or public affairs. Each station should be required to provide a total of 60 minutes of free time, to be allocated among the parties. The Canadian Association of Broadcasters objects to this proposal, suggesting that it would be financially onerous for broadcasters. The CEO and the Broadcasting Arbitrator maintain this recommendation, however, as greater access to free broadcasting time for all political parties is in the public interest.

Fifth, on the issue of free broadcasting time, although the Broadcasting Arbitrator believes that it should be allocated according to his 50/50 modified approach (currently used for the paid time allocation), the CEO recommends an equal allocation of free time among all registered parties.

CBC/Radio-Canada has also recommended that the free time allocation be published by the Broadcasting Arbitrator within two days of the issue of the writs; that parties be given a 10-day deadline to express their intention to use their free time allocation; that a station, if it is part of a network or broadcaster group, be able to schedule free time similarly on all stations of the network or group; that it not be necessary to schedule the free time evenly over the election period, as long as parties are treated in an equitable manner; and that no reallocation be permitted less than 21 days before polling day. The CEO and the Broadcasting Arbitrator agree with these recommendations, which essentially mirror the current allocation regime for paid time.