Last month, more than 160 professors signed an open letter to express grave concerns about the damage to Canadian democracy that the “Fair Elections Act,” Bill C-23, would cause. Today, we the undersigned, an even larger group of professors who share a deep concern over this legislation, urge the government to withdraw the bill and draft truly fair election reforms based on meaningful consultations with opposition parties, non-partisan experts, Elections Canada and the public. There is no reason to depart from this laudable Canadian tradition for electoral reform.
Committees in both the House of Commons and the Senate have now heard from many experts and citizens’ groups. Overwhelmingly, these witnesses have criticized the legislation. Despite the government’s claim that “ordinary Canadians” support the bill, a recent poll reveals that a majority of citizens oppose it. It appears that the more citizens know about it, the less they like it.
Senators have raised concerns about the bill and suggested some amendments. Unfortunately, their proposals cannot salvage an irremediably flawed bill. Of the concerns raised in the academics’ first open letter, the Senators directly address just one: the “fundraising loophole” that could give the governing party an advantage in campaign spending.
The following glaring defects of Bill C-23 would remain:
Investigating electoral fraud. Bill C-23 fails to provide the Commissioner of Elections power to compel witness testimony in investigating systematic electoral fraud such as the 2011 “robocalls” scandal. Witnesses with knowledge of fraudulent activity can – and regularly do – refuse to provide information to investigators. The bill’s proposed voter contact registry will not greatly enhance the capacity to prosecute fraud, and its increased penalties for fraud do nothing if investigators cannot prove crimes.
Polling supervision. Under Bill C-23, winning parties will appoint election poll supervisors – a further intrusion of partisanship in the electoral process, and one that creates an advantage for the incumbent party. The government has not addressed objections to this measure, and there is no sound rationale for it.
Voter turnout. With the sole exception of school programs, such as Student Vote, the Senate amendments retain the gag on Elections Canada’s efforts to encourage voter turnout. Senator Linda Frum has asserted that Elections Canada is in a “conflict of interest” when it promotes turnout, claiming that heightened participation comes at the expense of electoral integrity. This position is unjustified in both fact and logic. Public outreach that encourages all citizens to vote – not just those who support one party or another – is central to the mandate of electoral commissions worldwide, such as those in Australia, India, and New Zealand.
The Charter guarantee of the right to vote. By eliminating vouching and refusing voter information cards as proof of address, the bill undermines the right to vote protected by Section 3 of the Charter of Rights and Freedoms, a constitutional entitlement so fundamental that it cannot be limited by the Charter’s “notwithstanding” clause. Where governments require voter identification, international best practices require that governments issue free ID to all eligible voters. This bill does the opposite: it takes away existing forms of cost-free ID. The Senate’s proposed requirement of “letters of attestation” from First Nations, homeless shelters and elder-care facilities would offload government responsibility onto under-resourced communities without resolving the underlying constitutional issues. There is no doubt that the bill’s voter ID restrictions will be challenged in court for violating the constitutionally protected right to vote. By insisting on these measures, the government invites costly legal battles for no clear public end.
Elections Canada. As former auditor-general Sheila Fraser has persuasively argued, Bill C-23 undermines Elections Canada, an internationally renowned non-partisan agency. The damage done by the government’s gratuitous public attacks against Ms. Fraser and the Chief Electoral Officer goes even deeper. By casting doubt on the non-partisanship of independent officers of Parliament, the government unsettles the delicate balance of powers that secures our democratic system of government.