Tuesday, March 25, 2014

‘Repercussions beyond Canada’s borders’ if the Act passes

By Sandra Bartlett

The proposed Fair Elections Act is flawed legislation that will weaken democracy in Canada.Prof. Yasmin Dawood speaks at podium during panel  

That was the message from a panel of experts who spoke at ‘Democracy at Stake? Debating the Fair Elections Act’ held by the University of Toronto Faculty of Law on March 21st and recorded by the Cable Public Affairs Channel (CPAC).

Faculty of Law Prof. Yasmin Dawood, who co-authored an open letter to the government on this issue with other University of Toronto and Canadian scholars, moderated the panel and started things off by pointing out the dangers of fast-tracking the bill through Parliament. Dawood said ignoring the tradition of consultation and discussion not only raises questions about the government’s motives but will reduce public confidence in the changes.

“The biggest threat to electoral fairness is the conflict that arises when elected representatives determine the rules by which elections are conducted.”

At the bill’s introduction in February, Democratic Reform Minister Pierre Poilievre said the Act will provide better customer service for voters and crack down on voter fraud. 

Each panelist tackled that assertion by examining a section of the Act, describing its flaws and explaining how it chips away at democracy.

Adam Goldenberg is a Kirby Simon Human Rights Fellow at Yale University and a former Liberal speech writer.   

Prof. Yasmin Dawood speaks as cameras record the panel discussionHe took aim at the elimination of ‘vouching’: allowing a neighbour or relative to vouch for your identity at the polling station if you do not have traditional photo ID.

“It would effectively disenfranchise, according to the chief election officer, over 100,000 voters across the country—voters who are from minority backgrounds, who are low-income voters, who are homeless, who are seniors and have recently moved to senior residences, Aboriginal people who live on reserves.”

This disenfranchisement, Goldenberg said, may be unconstitutional because the government provides no proof it is justified.

People who rely on voter information cards to prove where they live may also lose their ballot if the cards are eliminated, argued Heather MacIvor, a former political science professor, now a law student at the University of Windsor. The cards are mailed to every registered voter. The government said some people receive more than one card and they can be stolen and used by others.

MacIvor said the government is wrong. She pointed out that the cards are one part of a two-step process to prove identity. People still need to show a piece of photo ID before they receive a ballot.  

“Studies have found that voter fraud is about one vote out of every two million, but being refused a ballot is about one in 1000,” MacIvor said. “Even at one in a 1000, you are at least a thousand times more likely to be disenfranchised than to try to vote fraudulently.”

The sad state of voter turnout is unlikely to be improved by the Act, according to Jane Hilderman of Samara, a non-profit organization that works to increase political participation.

“That you would say to an elections officer that you mustn’t encourage people to vote is rather like saying to the Minister of Health, don’t encourage people to stay fit.”

Elections Canada will no longer be allowed to educate and encourage voters, activities Hilderman said are needed to stop the slide in voter turnout, particularly among young people. In the 2011 election, overall voter turnout was 61 per cent. Among young people, it was 38 per cent.

“Leading research on voting behaviours suggest that young people are increasingly less likely to ever start voting, which means that without an intervention turnout at Canada’s elections will continue to decline,” Hilderman said. “And we already have one of the lowest turnout rates among western democracies.”

Questions from the audience shotThis issue was also a concern for audience member, Peter Russell, professor emeritus in the department of political science at U of T and a recognized constitutional expert. 

Russell said: “That you would say to an elections officer that you mustn’t encourage people to vote is rather like saying to the Minister of Health, don’t encourage people to stay fit.”

The government said it is closing loopholes to big money influence on elections, but panelist Michael Pal disagreed. The Trudeau Foundation Scholar, Mowat Centre Fellow, and doctoral student in the Faculty of Law said allowing politicians to write off the costs associated with raising money is a new loophole, “a giant tunnel you can drive a truck through.”

Pal said dollars spent raising dollars could be subtracted from spending limits, essentially increasing the amount of money that can be used for campaigning.  

And verifying those numbers will be difficult, according to Prof. Dawood. “The problem is it is very hard for Elections Canada to distinguish between fundraising expenses and campaign expenses.”

The Act recognizes new forms of electoral fraud and increases the punishments but Stéphane Perrault of Elections Canada took issue with what the public will learn about the Election Commissioner’s investigation of those offenses.

“He could say ‘I investigated and trust me there is nothing wrong.’  But that’s not very convincing,” Perrault said. “What you want to say is, ‘Here’s what I found and here’s why there is nothing wrong’.” 

Dawood said she believes there will be repercussions beyond Canada’s borders if the Act passes as is.

“We are the gold standard around the world for how elections ought to be run and the problem with the Fair Elections Act is that it violates basic principles of electoral fairness in all kinds of ways.  It will definitely tarnish our international reputation as a place where democracy works.”


Democracy at Stake was generously supported by the Scotiabank University of Toronto Law Faculty Lecture and Conference Fund.

Click here to watch the video of the panel discussion on the CPAC website.

See also the reply by Prof. Dawood and her co-authors to a defence of the Act by Minister of State for Democratic Reform Pierre Poilievre published in The Globe and Mail.

Follow Prof. Yasmin Dawood @YasminADawood and the panel discussion on Twitter with hashtag: #UTLawFEA.

Photos: Lucianna Ciccocioppo