by Leo Graziani

A Matter of Fairness

fair elections act

Has the Conservatives’ Fair Election Act been amended enough?

On February 4, 2014, Pierre Poilievre, the Minister of State for Democratic Reform, tabled Bill C-23, the Fair Elections Act. For almost three months, the furor over the provisions of the bill hasn’t died down. Opponents of the bill claim that several of its clauses are unwarranted and are designed to favour the federal Conservatives. The government said, at first, that the changes are common sense and don’t see what the fuss is about. But on April 25 they announced major revisions to the bill, addressing many of its most contentious parts. Are these amendments enough or does more need to be done?

The Facts in the Act
The Fair Elections Act is a 247-page omnibus bill. Some of the proposed changes include introducing new offences (e.g., impersonating a political agent or an election official, obstructing an investigation), stiffening existing penalties, toughening identification requirements, and improvements in monitoring mass calling. The government believes that these changes, among many others, are necessary because the laws need updating and because they are concerned about voter fraud.

Points of Contention
After a backlash from hundreds of political experts and journalists across the country, the proposals regarding vouching, restricting the communicative function of the Chief Electoral Officer of Elections Canada, the appointment of poll clerks and supervisors, and changes to the rules regarding campaign financing will be amended.

But the revised bill does not resolve concerns about limiting the investigative powers of the Commissioner of Elections and restricting Elections Canada from promoting voter turnout. Vouching and the Use of Voter Information Cards Vouching has been one of the most contentious issues surrounding this bill. Clauses 48(4), 53(1) and 56(1) of the act were to eliminate it, and clause 48(3) eliminates the use of Voter Information Cards (VIC). Under the current rules, if you can’t prove who you are and where you live at the polling station, you can have someone vouch for your identity and residency (a neighbour who knows you, for example); you both swear an oath in the process.

The problem mostly lies with proof of residency. Critics have cited that certain segments of the population can’t provide address information easily, such as homeless people, some seniors, or students who move frequently. In 2011, 120,000 voters didn’t have ID and 400,000 people relied on VICs. That’s a lot of people who could lose their right to vote.

The government claims that errors were rampant in the last two elections—but those errors didn’t come from people abusing the system, they came from elections officials recording information incorrectly. That is, they were clerical errors. Beyond that, the problem isn’t widespread: there were only 18 complaints of voter fraud among the millions of votes in 2011.

The government’s new amendments will allow voters to sign an oath of residence, with another qualified voter co-signing, to verify their address. You must, however, have photo ID with you; the government isn’t budging on that. Essentially, it’s a compromise, and it seems reasonable—most Canadians agree that ID should be required to vote. VICs will still be eliminated. The problem of disenfranchisement is reduced, but still there.

The Chief Electoral Officer
Elections Canada is the non-partisan, independent office that monitors elections, and the Chief Electoral Officer (CEO) is the head of the agency. Clause 7 of the Fair Elections Act would have restricted what the CEO can communicate to the public and to the Commissioner of Elections; that has since been lifted. The CEO can speak about anything he wants.

However, restrictions are still in place regarding the agency’s efforts to increase voter turnout; specifically, these restrictions limit Elections Canada’s advertising to speaking only about how to vote. (This does not affect the CEO’s ability to communicate.) Elections Canada runs outreach programs, to encourage people—young people, especially—to become more civic-minded and politically active. According to the government, voter turnout is terribly low (38.8 percent among youth 18–24 in 2011), which proves that these outreach campaigns don’t work.

While it’s good that the muzzle has been removed from the CEO, limiting the reach of these campaigns still presents a problem. Some critics say that a higher voter turnout among young people poses a threat to the Conservatives, because chances are they wouldn’t be voting for them. A well-informed public young or old feels much more ownership in Canada. Shouldn’t the educational role of Elections Canada be strengthened rather than reduced?

The Commissioner of Elections
The Commissioner of Elections is the elections watchdog. This is an independent, non-partisan job within Elections Canada that exists to ensure fairness and investigate wrongdoing, and the Commissioner reports to Parliament, not the ruling government.

Clause 108 of the Fair Elections Act makes the Commissioner an appointee of the office of the Director of Public Prosecutions, which reports to the government. The clause also restricts what the Commissioner is allowed to say to the public about an investigation; this includes good or reassuring news.

Of potentially greater concern is what isn’t included in the bill: the power to compel testimony (with a court order). This is something the Commissioner has long sought. Poilievre counters this by saying that the Commissioner has “all the same powers that a police investigator has…and they [police] manage to [solve cases] just fine without this extraordinary power he’s seeking.”

However, this lack of power to compel testimony is precisely the problem. “[I]t’s not uncommon for individuals who are not directly concerned with the investigation but who may possess important information to refuse to cooperate,” according to Yves Côté, the current Commissioner. “This can cause significant delays or even compromise an investigation.” This effect was seen on April 24, when Côté terminated the investigation into the robocalls scandal of 2011, citing a lack of evidence as the main reason. People simply refused to talk. It should be noted that if this power were granted, Elections Canada would ensure protections against self-incrimination.

What the Opposition Is Saying
Opposition leaders have spoken against this bill. Green Party leader Elizabeth May welcomed the changes, saying that they “address much of what was so terribly wrong with this bill, but we need to go farther.” NDP leader Thomas Mulcair agrees that more work needs to be done. Liberal leader Justin Trudeau has not as yet responded to the amendments; earlier he pledged to repeal the bill in its entirety if elected prime minister. Even some Conservatives have raised doubts.

We should keep in mind that the overriding goal of any change to an elections act should be to improve the electoral process. We need more engagement from citizens, not less.

Our elections have to be above reproach. To their credit, the Conservatives have listened to the critics and made some amendments that are a big step in the right direction, but there are still areas that need improvement.

Whether you approve or disapprove of the new Fair Elections Act, tell your MP. And keep an eye on this bill—it’s not law yet.

See the full text of the Fair Elections Act here. 

Your Mississauga Members of Parliament:

(Originally posted on mississaugalife.ca. The print version originally appeared in Spirit of the City/Mississauga Life, issue 25, 2014; the PDF of that is available here.)

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