Is electronic voting legal in Canada?

A voter marks her ballot at a polling station in Quebec City, October 19, 2015.
A voter marks her ballot at a polling station in Quebec City, October 19, 2015. REUTERS/Mathieu Belanger

To e-vote or not, that is the question.

The voter turnout in the federal election this week was a high point in Canada’s history— the highest since 1993. But could it have been even higher if we were allowed to vote on the Internet in the convenience of our homes and offices? Well, the good news is nothing in Canadian law prohibits electronic voting outright, although we don’t have laws that establish a framework for it either.

Elections Canada has published a research paper exploring the legal framework for e-voting in Canada. The paper supports implementation of e-voting because providing alternative methods of voting speaks to section 3 of the Charter. The courts have interpreted this section to place a positive obligation and a “strong facilitative role on governments to provide opportunities to vote to all citizens and to avoid placing extra burdens on particular groups of voters.”

It’s important to note the right to vote comes with a number of entrenched democratic values, such as the right to a secret ballot, and the right not to be disenfranchised based on unreasonable criteria (e.g. race, educational background, illness, disability, etc.) In other words, the right to vote carries within itself other “included rights,” as characterized by the Supreme Court of British Columbia in the case of Dixon v. British Columbia (Attorney General).

This means if the federal and provincial governments want to start test trying electronic voting methods, they should ensure the technology adheres to confidentiality and secrecy expectations. Moreover, the technology side must not run afoul of section 15 of the Charter: the right to equality. Electronic voting must not create different groups of voters and/or different treatment of ballots. These technical considerations makes electronic voting sound like a recipe for disaster and rightly so. However, Canada has experimented with e-voting in some jurisdictions with some success as have some other countries. We don’t have to reinvent the wheel. We can learn and borrow from jurisdictions that have ironed out the technical kinks and have functioning legislative schemes in place that support e-voting.

Luckily, the drafters of Canada’s current Elections Act had foreseen the rise of alternative methods of voting in Canada. As it stands today, the act has a number of provisions on voting procedures and on casting and handling of ballots. These provisions are written in relation to paper ballots only. However, s. 18.1 of the act allows the chief electoral officer to research alternative voting processes and test them for future use. For an alternative voting method to actually be used in an official election, the act requires the consent of the House of Commons and the Senate.

Electronic voting could alleviate the concerns of those voters, who by reason of illness, disability or other, find it burdensome to physically attend a polling station during specific hours.

If the electronic voting platform is secure and can capably handle voter identification and ballot secrecy, it may significantly increase voter turnout in upcoming elections. Let’s not forget we are already on the Internet on our phones hour after hour. Let’s get on with the times?

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