Rewriting our Elections Laws

It is shocking to hear the Chief Electoral Officer for Canada, Marc Mayrand, describe the overhaul of the Elections Act as ‘an affront to democracy.’

But that is, in fact, the core of Bill C-23—the so-called ‘Fair Elections Act’—an affront to democracy.

It was introduced for First Reading on Tuesday, February 4 and the hammer came down to limit debate on Thursday. By Monday night, February 10, it had cleared Second Reading. This is an administration in a hurry.

When I consider what we need to revitalize Canadian democracy, it certainly has to do with the Elections Act. But it starts with getting rid of our First Past the Post voting system and moving to proportional representation. It is fundamental to fair elections that election results are mirrored in the composition of our House of Commons. We need to deal with the unhealthy level of hyper-partisanship, the nonstop attack ads, and the fact that we have not gotten to the bottom of the robo-call scandal of the last election.

We need reform. We do need a fair elections act. However, this bill is not it.

There are a few reforms in the bill that I would support. There is no question that Elections Canada has not done a stellar job investigating election fraud. It really dropped the ball in investigating the many complaints about robo-calling in the 2008 election in my riding of Saanich-Gulf Islands. Whether through lack of resources or investigative powers, Elections Canada has been slow in getting to the bottom of the robo-calls fraud. The Act places the Commissioner for Canada Elections within the office of the Public Prosecutor. It is a quite independent position and should be removed from political interference. The problem is the government has not given that office any tools. It has not given that officer subpoena powers. What is worse is that it has created a black box surrounding the work. It has amended the Access to Information Act to remove, from access to information, anything going on in the work of the commissioner for Canada’s elections. They have also removed in the Elections Act the requirement to give any information about investigations.

One positive move is a new regime to regulate automated calling, robo-calls. It would put the transmission of messages through robo-calls under the jurisdiction of the CRTC and require tracking who is buying this kind of automated calling service. This portion of the bill has the support of Democracy Watch, and, if it was a stand along provision, I would vote for it.

However, the bill also includes a big new loophole for the spending of money. It now will not be considered an elections expense to spend money on fundraising activities for nomination candidates. That is an open door to abuse.

What is the worst part of this bill? It will make it harder for people without photo ID to vote. This systematically discriminates against students, First Nations, the poor and seniors.

This is a charter issue. In the Opitz decision (October 2012), the most recent Supreme Court of Canada ruling on the right of Canadians to vote Mr Justice Rothstein and Mr Justice Moldaver wrote:

‘The right of every citizen to vote, guaranteed by s. 3 of the Charter, lies at the heart of Canadian democracy.”

They went on to rule that rights were not infringed in that case (the tight election in Etobicoke Centre), but, in doing so they relied on the fact that voters could be supported by another voter who vouched for them. These vouching provisions will be eliminated under the new Act.

The court went on to say:

“The goal of accessibility can only be achieved if we are prepared to accept some degree of uncertainty that all who voted were entitled to do so.”

In the massive sales pitch for this new bill not once have the Conservatives provided any proof for the idea that we have a crisis of voter fraud in this country. There is no evidence for the notion that Canadians are covering their faces, creating false IDs and voting more than once. The crisis in Canadian democracy is not that Canadians are voting more than once, it is that they are voting less than once.

As for the treatment of the Canadian Chief Electoral Officer, Marc Mayrand has been targeted and insulted. The minister for democratic reform, Pierre Poilievre accused Mayrand of bias, claiming the referee should not wear a ‘team jersey’. I assume he didn’t think the jersey was blue. Mayrand is a public servant, doing his job, and the job that was being done is now going to be reduced to a mere shadow of its current intent.

It is heartbreaking to hear from people, particularly young people, who have been turned away at the polls because they found that multiple forms of ID did not work. I remember hearing from a young woman in Dawson City when I was there for a democracy town hall last October. She said she tried twice but been rejected. I asked her if she would keep trying and she said she did not know if there was any point; they did not want her to vote.

Under this new Act, we would see more and more Canadians turned away, disenfranchised by the false notion that we have a crisis in voter fraud. That is not our crisis.

We need to do everything possible to restore faith in the Canadian public in the health of our democratic system. I am baffled and deeply shocked by this bill. The things in it that are good could have been so much better, but the things that are bad are unforgivable in a democracy.