Even though federal law is silent on covered faces, elections chief adds new policy directive anyway
September 30, 2008
Kenyon Wallace
Staff Reporter
In a reversal of past practice, people wearing face coverings will not be permitted to vote in the upcoming election unless they swear a special oath.
The change is based on a policy directive from chief electoral officer Marc Mayrand. It instructs returning officers to ask voters with obscured faces to uncover or swear they are eligible to vote before being allowed to cast ballots.
But the new policy seems to be at odds with the Canada Elections Act, which has no requirement that federal electors show their faces.
It also contradicts comments made by Mayrand before last September’s Quebec by-elections when he rebuffed demands from the Conservatives to use his powers to force Muslim women wearing veils to uncover their faces.
Repeated requests to interview Mayrand last Friday and yesterday were not granted by Elections Canada.
However, John Enright, an Elections Canada spokesperson, said Mayrand’s changes are permitted under the Canada Elections Act.
“It’s an administrative procedure put in place by the chief electoral officer. He’s got to make sure that the processes and rules outlined in the legislation actually work the way that they’re intended by Parliament,” said Enright.
“That Act is not a poll manual. It doesn’t go into the fine tuning of how things happen throughout all of the processes,” he said, adding polling officials have been instructed to be respectful and sensitive.
Mayrand clashed with MPs from all parties last year when he steadfastly refused to use his power of adaptation under section 17 of the Canada Elections Act to force voters to uncover their faces. He argued on Sept. 13, 2007, before a Commons committee the situation was not serious enough to exercise power he considered reserved for emergencies. Mayrand maintained he could not force a voter to remove a face covering unless such a provision was explicitly stated in the Act.
A bill tabled in Parliament last October requiring voters to show their faces died at committee when the general election was called.
Under the current legislation, it’s not even necessary to show photo ID to vote. Voters have three options to prove their identity:
Present one piece of government-issued ID that includes a photo, name and address, such as a driver’s licence.
Present two pieces of ID approved by the chief electoral officer. Both must contain the voter’s name and one must include the voter’s address. The latter can be addressed mail. No photo is required.
Make a sworn statement and have another elector who has acceptable identification and whose name is on the list of electors in the same polling division vouch for you.
An elector can also vote by mailed ballot from home or overseas, an option that doesn’t require visual identification by a polling official.
Craig Forcese, a law professor at the University of Ottawa, said Elections Canada does have discretion to introduce procedures not specifically addressed in the Act.
“The problem is, they can’t exercise their discretion in a manner that amounts to unconstitutional discrimination or that impairs the right to vote,” said Forcese.
He said requiring voters to show their faces at polling stations is a double standard – close to 80,000 Canadians voted by mail in the 2006 election – and could amount to religious discrimination.
“To effectively require photo ID and then this juxtaposition of photo ID against your face if you’re wearing a face covering, but not for people who come in without a face covering, it’s really hard to imagine how that could be justified.”
According to Forcese, the subtext of the requirement amounts to singling out a constituency most likely to veil – Muslim women.
When asked how requiring veiled Muslim women to uncover their faces is not discrimination, especially when photo ID isn’t required at the polls, Enright responded: “How is it not discrimination? I don’t know if I can answer that.”
Alia Hogben, executive director of the Canadian Council of Muslim Women, said she has no idea why Mayrand made the change.
“It’s totally a political move to satisfy some MPs and to satisfy some Quebecers. I don’t think it has anything to do with the Canada Elections Act itself,” Hogben said, adding few Muslim women in Canada practise the conservative interpretation of Islam requiring the veil.
“Women who wear the niqab realize that, for example, if you go through customs or enter the country, you have to lift it and show your face to another woman,” she said.