There are two significant dates in the history of Canadian elections. The
first was 1874 when changes ensuring the secret ballot and simultaneous
voting were approved. The second was the creation of the Office of the
Chief Electoral Officer in 1920. Though the importance of the 1874 changes
cannot be minimized, this paper focuses exclusively on the Chief Electoral
Officer as an Officer of Parliament. With the announcement in late December
2006 of the resignation of Jean-Pierre Kingsley as Canadas Chief Electoral
Officer, this brief summary of the office is designed as a simple reminder
for the new Chief Electoral Officer of how the office has evolved over
the past eight decades and its vital importance to Canadas electoral
Now commonly referred to as Elections Canada, the Office of the Chief Electoral
Officer has imparted a legitimacy and a credibility to Canadas electoral
process that is unmatchable. This is explained largely by the fact that
the position got off to a very good start in 1920 and that the statute
initially establishing the Office was both well-designed and well-executed.
All provinces and territories have fashioned a reasonably close institutional
facsimile to that of Elections Canada, and established and emerging democracies
alike have repeatedly demonstrated that they value the advice and assistance
of our election Officials in establishing their own election machinery
or in monitoring their elections.
This article focuses on five aspects of the Office of the Chief Electoral
Officer: the Offices origins, independence, responsibilities, responsiveness,
and the impact on the Office and the Canada Elections Act of the Canadian
Charter of Rights and Freedoms.
The creation of the Office of the Chief Electoral Officer can best be understood
in the context of the events of 1917 and the immediate postwar years. The
Unionist Government brazenly manipulated the electoral process for its
own partisan purposes in the midst of the First World War. The Wartime
Elections Act and the Military Voters Act of 1917 proved to be the most
controversial pieces of electoral legislation in Canadian history. The
acts enfranchised for that election only the female relatives of men serving
with the Canadian or British armed forces as well as all servicemen. At
the same time they disenfranchised conscientious objectors and British
subjects naturalized after 1902 who were born in an enemy country or who
habitually spoke an enemy language. It was a low point in Canadian electoral
history. In 1920, with another election pending, the status quo was clearly
no longer acceptable.
By 1920 there were other forces as well that were laying the groundwork
for substantial changes in the way elections would be run. Various provincial
Farmers parties and the Progressives gave strong support to reforms aimed
at making the electoral system fairer and more open. Womens groups successfully
pressed for female enfranchisement and they did so openly claiming that
if women had the vote that would do much to ensure that the political system
would be cleaned up. In such a context the establishment of an independent,
non-partisan Officer charged with overseeing the administration of elections
made a good deal of sense. It was clear that by 1920 public opinion was
prepared for substantial changes in the way elections would be managed.
Additionally, with the electorate effectively doubling in size because
women were about to enter the electorate, the job of organizing elections
would suddenly become a much larger and more complicated undertaking than
it had ever been in the past.
Thus, to guarantee an electoral organization that would be distinguished
by its managerial competence, administrative fairness, and institutional
non-partisanship, the Office of the Chief Electoral Officer was established
nearly a century ago.
From the outset the General Electoral Officer (the first name given to
the Chief Electoral Officer) was to be, in the words of the minister responsible
for introducing the legislation, in every way a permanent and independent
officer.1 As an Officer of Parliament, the Chief Electoral Officer would
be selected by and report directly to the House of Commons through the
Speaker. Every Chief Electoral Officer since 1920 (amazingly given that
eight-and-a-half decade have passed, only five individuals have held the
position) has been appointed with unanimous consent.2
Minister of the Crown would be a party to the reporting transaction. The
Officers tenure of office would be the same as that of a Superior Court
Judge, which effectively meant that he could not be removed by the Government
of the day. Instead, removal for cause by the Governor in Council could
only follow the adoption of an address from both houses of Parliament.
To ensure that the Officer would be independent of politics, he and his
Deputy have been denied the right to vote in federal elections.
Speaking to the issue of his Offices independence, our most recent Chief
Electoral Officer (Jean-Pierre Kingsley) distinguished that principle from
While impartiality goes to the particular decision-makers own subjective
attitude or mind set towards a particular decision to be made, independence
goes to structural issues which may impact on the ability of the decision-maker
to perform his or her mandate. To be independent ... is to work within
an administrative or legislated structure which does not intrude upon or
otherwise impede the due performance of ones statutory office according
to the law. Independence, in other words, refers to the administrative
structures which may be necessary to ensure that the performance of ones
statutory mandate is not influenced by factors foreign to legal process
The structural component in the independence of an electoral office is
clearly a critical factor in explaining its legitimacy. But equally, one
could make a case that accepted norms play a vital part in ensuring the
Chief Electoral Officers independence. Without the support and (dare one
say?) deference of the public and elected office-holders, Elections Canada
could scarcely expect to enjoy the independence and authority it does.
The checkered electoral history of many other countries speaks to that
point. To be truly independent, an Officer of Parliament such as our Chief
Electoral Officer needs the assurance of both a legitimate structural framework
within which to carry out his responsibilities and widespread acknowledgement
of the legitimacy of his position on the part of the public and political
What is striking about the independence granted the Chief Electoral Officer
of Canada by Parliament is its unique stature within the cluster of Parliamentary
Officers. Those who have established the framework within which the Chief
Electoral Officer fulfills his responsibilities (the Canada Elections Act)
are at the same time those most obviously and closely identified with having
vital interests directly affected by the Officers interpretation and application
of the Act. In varying degrees, that is less the case with the other Officers
Established in 1920 by the Dominion Elections Act (now the Canada Elections
Act), the Office of the Chief Electoral Officer was from the outset assigned
a strictly supervisory and administrative role in electoral management,
but with an important twist.4
In the words of the Minister introducing
the Bill to the Commons, the duties of the Chief Electoral Officer would
be to take charge of the election machinery and the conduct of elections
in general throughout the Dominion.5 That was straightforward enough,
but the twist in the assignment of responsibilities to the Chief Electoral
Officer became obvious from the wording of the Act.
The Chief Electoral Officer was charged.
(1) with exercising general direction and supervision over the administrative
conduct of elections with a view to ensuring the fairness and impartiality
of all election officers and compliance with the provisions of this Act,
(2) with reporting to the House of Commons, through the Speaker, after
an election, any matters arising in the course of the election an account
of which ought in his judgment, to be submitted to the House of Commons.6
The second clause in particular grants considerable scope to the Chief
Electoral Officer. Electoral management and administration is one thing;
flagging any matters arising in the course of [an] election for Parliaments
attention is quite another. By adding discretionary powers based on his
judgment to the Chief Electoral Officers administrative and managerial
tasks, Parliament created what amounts to a position with, in effect, two
lines of responsibility. First, as an Officer of Parliament the Chief Electoral
Officer has an obvious responsibility to those who chose him in the first
place. Members of Parliament deserve a full accounting of how the electoral
machinery is running and where the Elections Acts strengths and deficiencies
lie. Second, as someone charged with exercising his judgment on electoral
issues the Chief Electoral Officer has a clear responsibility to the electorate.
He, in effect, becomes their Ombudsman who makes their case before Parliament
on electoral matters. With respect to both lines of responsibility (to
Parliamentarians and to the public), transparency of purpose and accountability
of action are essential to the success of the Chief Electoral Officer.
The creation of the Office of Chief Electoral Officer introduced a measure
of responsiveness to the Canadian electoral system not previously seen.
By law, after every election the Chief Electoral Officer must present a
report to Parliament in which he can outline obstacles to voting and recommend
changes to address these problems. The first Chief Electoral Officer (Oliver
Mowat Biggar) made a favourable impression with his initial report following
the 1921 election. He noted that some voters (disproportionately newly
enfranchised females, as it turned out) had difficulty participating in
the election because their names had been left off the voters list and
that others, for a variety of reasons, were unable to vote on the particular
day selected for the election. Accordingly, he recommended more revision
officers to increase the number of eligible electors included in the voters
list and more advance polls to increase the convenience of voting. By amending
the Elections Act in line with both recommendations, Parliamentarians indicated
an early respect for the advice of their Officer.
Countless other examples of improvements in the electoral system have been
made as a consequence of recommendations from the Chief Electoral Officers
or initiatives undertaken by Elections Canada. These include the provision
of wheelchair access to polling stations; the printing of ballots and other
election material in Native languages; the use of helicopters to fly in
electoral supplies and ballots to small, isolated communities in the northern
territories; the provision of assistance in the voting booth for those
with a physical disability or impaired vision; and the establishment of
polling stations in nursing homes or chronic care facilities. Such moves
have been aimed at ensuring that the electoral machinery is responsive
to the needs of a growing and increasingly varied electorate. Over the
past decade programs aimed at increasing electoral participation rates
of such targeted groups as Aboriginal peoples, ethnic minorities, and youth,
have been designed to try to reverse the decline in voter turnout.
In the pre-Charter era changes to the Canada Elections Act came from two
distinct sources: the Chief Electoral Officer and the Government of the
day. As we just saw in the previous section Canadas Chief Electoral Officers
played an important role in suggesting and anticipating electoral reforms.
This has generally taken the form of recommendations included in the statutory
reports required after each general election. But other reforms, such as
amendments to the Canada Elections Act that removed discrimination on the
basis of race from the law (1948), or extended the right to vote to registered
Indians (1960), or lowered the voting age to 18 (1970), have come directly
from the acceptance by Parliament of Government-sponsored amendments to
The advent of the Canadian Charter of Rights and Freedoms in 1982 introduced
a new player into the electoral game. Not surprisingly, it is Elections
Canadas view that the Charter has emerged as the most significant influence
on electoral law in the post-war years.7
The courts suddenly joined the Chief Electoral Officer and Parliament as
the third protector of voting rights. Let me single out one of many areas
of electoral law that has been changed by the courts since the introduction
of the Charter in 1982: the franchise. The Supreme Court of Canada has
handed down three major decisions regarding the franchise: prohibitions
on voting by judges (1988), by the mentally handicapped (1988), and by
prisoners (2002). In each of those cases section 3 of the Charter (the
right to vote) has been generously interpreted by the Court; all three
prohibitions have all been struck down as violations of the Charter-guaranteed
right. Many other Charter challenges to federal and provincial electoral
laws have also been heard by the courts, largely on grounds of violating
sections 2 (freedom of expression and association) and 3 (right to vote).
These have included several electoral districting cases as well as challenges
to laws governing campaign expense reimbursements, prohibiting the publication
of public opinion polls, and restricting third party advertising.
The two Chief Electoral Officers who have held office since the Charter
was introduced have paid considerable attention to Charter-related issues
and to potential challenges. Both Jean-Marc Hamel (1966-90) and Jean-Pierre
Kingsley (1990-2007) crafted a series of reports (on top of those required
after an election) specifically designed to outline the problems with and
to recommend changes to election law and administrative practices. The
general intent was to bring electoral laws and regulations in line with
the reality of Charter-guaranteed protections. Five specific areas have
received the greatest attention: the Franchise, Redistribution, Electoral
Administration, Voter Registration, and Election Expenses/Party and Candidate
Financing. If there has been a theme common to the reports it has been
one of increasing transparency and accountability and, in a sense, of redefining
electoral democracy into one that is more citizen-focused and rights-protective
than it had been in the pre-Charter era.
Within a year of the Charter coming into effect, the Chief Electoral Officer
presented a report to Parliament with an entire section devoted to The
Canadian Charter of Rights and Freedoms Its Effect on the Canada Elections
Act. It sought to identify those groups and/or individuals who [were]
specifically disfranchised as a result of existing provisions of the Canada
Elections Act. It singled out sections of the Act dealing with the right
to vote and the right to be a candidate that could be subjected to Charter
challenges. The concerns of the Chief Electoral Officer with the Elections
Act were evident in his first post-Charter report. He sought to foreworn
Parliament about legal issues likely to surface in the years ahead. Principal
among these were the prohibition on voting based on age; disenfranchisement
of specific groups or individuals; administrative disfranchisement of some
persons and groups; and qualifications for membership in the House of Commons.
That report set the tone for others in the years ahead. In the 1984 report,
for example, a full chapter was devoted to Potential Conflicts between
the Canadian Charter of Rights and Freedoms and the Canada Elections Act.
More recently, Jean-Pierre Kingsley flagged a number of Charter-related
issues in reports entitled Canadas Electoral System: Strengthening the
Foundation (1996) and Modernizing the Electoral Process (2001).
All of this is not to say that the Office has been free of controversy
and criticism. Critics invariably find their voice when problems surface
with the voter registration process, or in the course of revising voters
lists, or in the election day management of some polling stations. Chief
Electoral Officers have themselves been the objects of criticism not
on grounds of partisanship, which in itself is significant, but rather
as appearing to at least some Canadians to be overly defensive of controversial
parts of the electoral regime (limits on third party advertising come to
mind) or overly committed to effect certain changes, such as replacing
door-to-door enumerations with a continuously maintained electoral roll.
But how else can public criticisms of the Chief Electoral Officer and of
Elections Canada be explained apart from saying that they go with the
turf? It would be a rare public agency whose administrative and managerial
skills were faultless, whose procedures may not always live up to their
billing, or whose senior officers commitments to particular policies were
not the subject of occasional debate.
That said, however, the evidence is overwhelmingly on one side of the ledger.
In 1920 Parliament set out to fashion an electoral office that would in
every way [be] permanent and independent. It is no exaggeration to say
that that goal has been achieved. The fact that since 1920 there have been
only five Chief Electoral Officers speaks well of the position as it was
originally and subsequently envisaged, of the individuals who have held
it, and of their relationship with both the parliamentarians and the public.
In the Office of the Chief Electoral Officer, we have an institution that
has become an accepted and integral part of our democratic electoral structure.
Its legitimacy rests on that fact, as the Offices new incumbent will soon
1. Hugh Guthrie, Minister of Militia and Acting Solicitor General, March
11, 1920. House of Commons, Debates p. 339.
2. Upon nomination in 1990, Jean-Pierre Kingsley stipulated that he would
accept the appointment only if it received the unanimous consent of the
House. The motion supporting his appointment was seconded by members of
the two Opposition parties. See also Jean-Pierre Kingsley, The Administration
of Canadas Independent, Non-Partisan Approach. Election Law Journal.
Vol 3, no 3, 2004, p. 406.
3. See Jean-Pierre Kingsley, Independence and Accountability Mechanism
in Federal Election Legislation. Conference on Independence and Responsibility:
Canadas Officers of Parliament. University of Saskatchewan, November
2-3, 2001, p. 2.
4. The Chief Electoral Officer was assigned the electoral responsibilities
previously exercised by the Office of the Clerk of the Crown in Chancery.
That office was abolished by the Dominion Elections Act in 1920.
5. See, Canada, House of Commons, Debates, March 11, 1920, p. 339, [ital.
6. Canada, Dominion Elections Act. 10-11 Geo V.  s. 19 (1) (b) (c).
7. Elections Canada, A History of the Vote in Canada, Minister of Public
Works and Government Services, Ottawa, 1997, p. 94.