By Yasmin Dawood, Assistant Professor of Law

Illustration by Gary Neill

From the Spring/Summer 2014 issue of Nexus

Voting boothThe government’s controversial Fair Elections Act (Bill C-23) has received near-universal condemnation for undermining Canadian democracy since its introduction in February this year. In its original incarnation, the Bill impaired voting rights, reduced political participation, injected partisan bias in election administration, increased the influence of money in elections, diminished transparency and accountability, and seriously undermined the integrity and fairness of the electoral process.

In response to widespread criticism—from Elections Canada, academics, experts, media commentators, citizens, and the opposition parties—the government excised some of the worst features of the Bill. Despite these revisions, the Bill is still flawed in various ways. It was nonetheless passed by the House of Commons in a 146 to 123 vote. As of this writing, it is expected that the Bill will be passed by the Senate, and ushered into law in June.

In March, I co-authored an open letter to Prime Minister Harper and the Members of Parliament with five colleagues across the country (Professors Maxwell Cameron, Monique Deveaux, Genevieve Fuji Johnson, Patti Lenard, and Melissa Williams) in order to express our profound concern that the Fair Elections Act would seriously damage Canadian democracy. The open letter was signed by over 160 professors at Canadian universities who study the principles and institutions of constitutional democracy, including sixteen past presidents of the Canadian Political Science Association. It was published in the National Post (“Don’t Undermine Elections Canada,” March 11, 2014) and Le Devoir.

I was subsequently invited to testify about the Fair Elections Act before the House of Commons committee studying the Bill. A few weeks later, we co-authored a second open letter to Prime Minister Harper and the Members of Parliament calling for the withdrawal of this “irremediably flawed” Bill. The open letter was signed by over 460 academics across the country and was published in the The Globe and Mail and La Presse on April 23rd.

A couple of days later, the Minister for Democratic Reform, Pierre Poilievre, announced various amendments to Bill C-23. These amendments responded to many of the concerns raised by experts, citizens groups, opposition parties, and our open letters.

For example, Bill C-23 applied a gag order on the Chief Electoral Officer by preventing him/her from communicating with voters about any topic other than how, where, and when to vote. A gag order was also placed on the Commissioner of Elections, who is responsible for ensuring compliance with the election rules. The amendments partially lifted the gag order by permitting the Chief Electoral Officer and the Commissioner to speak freely with the public and with one another.

Bill C-23 also created the actuality and appearance of partisan bias in the electoral process. It provided that central poll supervisors would be selected by the winning party, thereby violating the norm that the electoral process ought to be strictly neutral. The Bill also established a “fundraising loophole” that exempted certain expenses from the spending limits for political parties. This loophole would have increased the influence of money on politics in addition to providing the governing party with an electoral advantage. The government removed both of these features from the Bill.

Another serious problem with Bill C-23 is that it prohibited the use of vouching to establish the identity and address of eligible voters—a change that would have disenfranchised tens of thousands of voters, and, in particular, would have disproportionately affected seniors, students, low income individuals and First Nations citizens. In its amendments, the government provided a partial solution by permitting voters who lack address identification to sign a residence oath.

Despite these hard-won amendments, the Fair Elections Act is still flawed. The most significant problem is that Bill C-23 fails to provide the Commissioner with the power to compel witness testimony -- an essential power that is required to effectively investigate electoral fraud. Without this power, investigations into electoral fraud (such as the robocalls affair) will be seriously hampered if not aborted. In addition, political parties are not required to provide receipts for their electoral expenses even though they are reimbursed over $30 million at taxpayer expense.

The Bill retains a partial gag on Elections Canada by prohibiting it from engaging in advertising campaigns to increase voter turnout. Experts have also raised concerns that voters will be disenfranchised and that turnout will be reduced. The Bill has retained the ban on the use of Voter Information Cards (VICs), even though pilot projects run by Elections Canada demonstrated that VICs made it easier for certain groups such as students, seniors and First Nations citizens to vote. Other provisions in the Bill impair the independence of Elections Canada.

The rules of democracy must be neutral and non-partisan. If there is one thing that the controversy over the Fair Elections Act has revealed, it is this: the fairness and neutrality of our electoral rules depends a great deal on the process by which these rules are drafted. By engaging in a unilateral effort to change the electoral rules, the government departed from a long-standing political practice in Canada whereby electoral reform was based on widespread consultation with the political parties, citizens, experts and Elections Canada. It is my hope that future governments will return to this laudable practice, thereby safeguarding the fairness and legitimacy of our democracy.