Instructions to delay the sending of special ballots to certain international electors

42nd GENERAL ELECTION

INSTRUCTIONS OF THE CHIEF ELECTORAL OFFICER
ISSUED PURSUANT TO SECTION 179 OF THE CANADA ELECTIONS ACT
FOR THE PURPOSE OF DELAYING THE ISSUANCE OF SPECIAL BALLOTS TO ELECTORS WHOSE NAMES ARE IN THE INTERNATIONAL REGISTER BUT WHO HAVE NOT INDICATED AN INTENTION TO RETURN TO CANADA TO RESIDE OR PROVIDED PROOF OF THE APPLICATION OF AN EXCEPTION TO THE FIVE-YEAR LIMIT

WHEREAS the 42nd general election was called on August 2, 2015, with polling day on October 19, 2015;

WHEREAS pursuant to subsection 222(1) of the Canada Elections Act (the “Act”) the Chief Electoral Officer maintains a register of electors who are temporarily resident outside Canada (the “international register”) for the purposes of mailing a special ballot, an inner envelope and an outer envelope (a “special ballot kit”) to those electors, so that the electors can vote by mail;

WHEREAS subsection 227(1) of the Act requires that the Chief Electoral Officer, after the issue of the writs for an election, send a special ballot kit to an elector whose name is entered in the international register;

WHEREAS prior to May 2, 2014, there were three requirements in subsection 222(1) of the Act to be met by non-resident electors who wished to have their names entered in the international register: prior residence in Canada, an intent to return to Canada to reside, and residence outside Canada for less than five consecutive years (the “five-year limit”);

WHEREAS prior to May 2, 2014, a non-resident elector who had resided outside Canada for five consecutive years or more could have his or her name entered or maintained in the international register if one of the exceptions to the five-year limit set out in subsection 222(2) applied to the elector;

WHEREAS on May 2, 2014, the Honourable Justice Penny of the Ontario Superior Court of Justice ruled that the provisions of the Act requiring an intent to return to Canada to reside and applying the five-year limit were of no force and effect, rendering the exceptions to the five-year limit of no application;

WHEREAS, in order to implement Justice Penny's decision, the Chief Electoral Officer stopped asking non-resident electors who wished to have their names entered in the international register if they had an intent to return to Canada to reside and, if the elector had lived outside Canada for five consecutive years or more, for proof that an exception to the five-year limit applied to the elector. The Chief Electoral Officer also stopped asking electors whose names were already entered in the international register and who had reached the five-year limit for residence outside Canada for proof that an exception to the five-year limit applied to them;

WHEREAS on July 20, 2015, the Ontario Court of Appeal reversed Justice Penny's decision, thereby reinstating the application of the five-year limit and the exceptions to that limit, as well as the requirement for an intention to return to Canada to reside;

WHEREAS, pursuant to section 225 of the Act and in order to implement the Court of Appeal decision, on July 31, 2015, the Chief Electoral Officer began sending letters requesting information on intent to return to Canada to reside and proof of the application of exceptions to the five-year limit from electors whose names are entered in the international register and who have not supplied this information or proof;

WHEREAS the Chief Electoral Officer has imposed a deadline of September 12, 2015, for receipt of the requested information and/or proof;

WHEREAS the effect of the Court of Appeal decision was to reinstate the requirement that the international register have entered in it only the names of electors who have previously resided in Canada, intend to return to Canada to reside, and have lived outside Canada for less than five consecutive years or are exempt from the five-year limit, and therefore, electors who do not meet these criteria should not be able to vote by special ballot pursuant to Division 3 of Part 11 of the Act;

AND WHEREAS section 179 of the Act provides the following:

179. For the purpose of applying this Part [Part 11 of the Act] to, or adapting any provision of this Part in respect of, a particular circumstance, the Chief Electoral Officer may issue any instructions that he or she considers necessary in order to execute its intent.

THEREFORE, pursuant to section 179 of the Act, the Chief Electoral Officer hereby issues instructions to the special voting rules administrator as follows:

1. Despite subsection 227(1) of the Act, the special voting rules administrator shall not send a special ballot kit to an elector whose name is entered in the international register and to whom a request for information or proof of exemption from the five-year limit has been sent unless and until the required information or proof is received from the elector.

August 10, 2015

Marc Mayrand
Chief Electoral Officer