Canada’s “Fair Elections Act”: What Is It Really About?

The right to vote and the integrity of the voting process is at the heart of democracy. Governments derive their legitimacy from a fair and free right to vote. Democracy and elections to not belong to any one party, nor is organizing or controlling elections the right of the government. Elections are too important to leave any one party or government. Advanced democracies leave that responsibility to independent officers and election commissions.

Canada is universally held up around the world as a country where elections are fair and democratic. So, what is it about our election laws that motivate the Harper government to ram through Bill C-23?

The Harper Conservative spin machine points to voter fraud and the need for stiffer penalties. There is no real threat or evidence of voter fraud. And, even if there was those investigations and prosecutions should be undertaken by independent offices such as Elections Canada.

Bill C-23 proposes major changes, with major implications. It is more than 250 pages long. I will attempt to deal with a few key areas:

1.     The government’s Bill would eliminate vouching (voters would also be barred from using the information card Elections Canada mails to the voter). The Supreme Court of Canada found alleged voting irregularities in a Toronto riding involved mistakes and oversights on the part of officials. It concluded, even those voters who had been vouched for, acted in good faith and were legitimate. Irregularities do not necessarily equate to fraud.

Are the Conservatives’s proposals proportionate to the problem? The government grossly exaggerates and distorts the evidence to justify the elimination of vouching. Many experts warn that this measure would likely discourage and disenfranchise thousands of voters – youth, the poor, homeless, seniors in care facilities, and minorities.(1) The ACLU has warned of US style voter suppression, “They show up, they wait in line, they get to the front of the line and hear, ‘Sorry, you can’t vote, you’ve gotta go home. And then that person says, “Ah screw it, I don’t have time.’”(2) Or, does not have the requisite ID. As for fraud, political insiders misdirecting voters with “robocalls” is a bigger problem, than vouching irregularities.

2.     The Bill does create new offences and fines, but it also substantially reduces the independent investigation powers of Elections Canada. It proposes moving the Commissioner out of Elections Canada and into the Office of the Director of Public Prosecutions. It would restrict how the Chief Elections Officer and the Commissioner communicate and creates a barrier between the two, including what they may tell the public about matters or individuals under investigation. How does dividing up one office and authority for investigations improve ability to investigate and pursue wrongdoers?

3.      Bill C-23 eliminates the ability of the Chief Electoral Officer to consult with Canadians and disseminate information on electoral democracy, to publish research and information programs, and civic engagement. This includes public outreach to counter declining voter participation by encouraging people to vote, such as engaging young people and new Canadians to vote and in participatory democracy. That is healthy for a democracy; the government’s proposals erode the health of our democracy.

4.      Bill C-23 allows a political party to exempt from campaign spending limits the cost of contacting previous donors. This is a blatant attempt to favour the Conservatives who have the largest and deepest list of past donors. The cost of outreach to new donors would be a campaign expense. The Conservatives have an obvious advantage over their opponents. This and other “minor” proposals combined are an end run around limits on election expenses. Remember the adage, “Follow the money.” It is a partisan and huge campaign spending loophole, and not something that helps advance democracy.

5.      Bill C-23 would introduce more partisanship, even dangerous aspects. It proposes that the winning party in each riding have the power to nominate the riding’s central poll supervisors. Yes, you read it right! These are the people who are in charge of the polling place. Under the current law, they are selected by non-partisan officials of Elections Canada. The new law risks mischief and bias.

The Bill also provides that parties be given a post election list of eligible voters who cast ballots – sounds not so bad in theory – but, raises concerns about voter privacy rights. Currently, parties do try and monitor who has voted on election day to get out their vote. But, shouldn’t voters and their participation remain private in the hands of Elections Canada and not a political party? There is potential of misuse of that information for improper and partisan purposes.

The Harper Conservative government is the most partisan in modern Canadian history, and while some may even contend hyper partisanship has a place in politics, it has no place in updating something as important as election laws. The UK electoral commission was consulted extensively before changes to election laws. That’s how it should be in a modern democracy, but apparently not with the current federal government.

This is the new normal in Ottawa; laws being rammed through parliament. The Harper government is using closure as a way to end debate.

As a lawyer, I might suggest that the some of the new provisions would not ordinarily survive constitutional challenge in the Supreme Court, but that determination would likely not occur until after an election – one manipulated and designed to help re-elect the Conservatives. But, this is not an ordinary government – after all, this is a government that tries to stack the courts with Conservative and partisan judges, hence the Marc Nadon fiasco. Could Vic Toews be next in line for appointment to the highest court? PM Harper just appointed the highly partisan and abrasive Toews to the Manitoba Court of Queens Bench. Is it so far-fetched to think we are on our way to the Canadian judicial version of the Scalia, Alito and Thomas. Remember Bush v. Gore? There is no impediment to Harper appointing judges like Toews, as there was in the SCC case with a Quebec geographical and civil law requirement. Since 2006, this government has been appointing more conservative judges, keeping it under the radar, incrementally changing the judicial culture and pool for future appointments to the highest courts.

Our tradition of Conservatives, Liberals and New Democrats respecting basic rights and norms, including the right to vote and have a say, is being eroded by the Harper Conservatives. The compliant backbench does not seem to have the backbone or integrity to speak up for Canadians and basic democratic practices.

This is a fundamental issue of democracy. All fair-thinking Canadians would put democracy and electoral fairness above the interests of any political party. Where does your Member of Parliament stand on Bill C-23?

The Conservative government’s (Un)Fair Elections Act appears to really be about undermining electoral participation and public debate. It is US Republican-style voter suppression and winning elections unfairly.

(1) 120,000 voters based on 2011 election;
(2) Witold Walczak, Legal Director ACLU, Canadian Press, February 16, 2014.

* Reference sources also include: Draft Bill C-23, CBC “The House”, Globe & Mail, National Post, Huffington Post,, Lead Now, Broadbent Institute.

About Bill Sundhu

Canadian lawyer, Former Judge, Member of Kellogg College of University of Oxford (Masters Degree in International Human Rights Law 2010).
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