Prof. Yasmin Dawood has co-authored a commentary in The Globe and Mail replying to a commentary by Minister of State for Democratic Reform Pierre Poilievre that defended the Fair Elections Act. The commenary by Prof. Dawood and her co-authors notes several continued areas of concern about the act ("Criticism of Elections Act is legitimate, and should not be brushed off," March 25, 2014).
Read the commentary on The Globe and Mail website, or below.
Criticism of Elections Act is legitimate, and should not be brushed off
Profs. Yasmin Dawood, Maxwell Cameron, Monique Deveaux, Genevieve Johnson, Patti Tamara Lenard and Melissa Williams
March 25, 2014
We would like to remind the Minister of State for Democratic Reform Pierre Poilievre that the original justification offered by his government to eliminate vouching was that it led to voter fraud. Harry Neufeld, the author of the compliance report upon which the government relied, corrected the minister, stating that his report never said that the use of vouching resulted in voter fraud. Voter fraud is a more serious breach than the record-keeping irregularities that Mr. Neufeld did identify in his report. These irregularities were mostly cases of administrative errors – such as failing to record the full name and address of the voucher, or failing to confirm that the voucher was registered in the polling district. There was no evidence that these errors resulted in an ineligible voter being allowed to vote.
We notice that the minister is no longer using voter fraud as the justification for eliminating vouching, but is instead suggesting that that these record-keeping irregularities are reason enough to prohibit vouching. Are such minor errors sufficiently grave to justify the disenfranchisement of thousands of eligible voters? The Minister cites the Neufeld Report for the idea that courts “refer to such serious errors as ‘irregularities’ which can result in votes being declared invalid.” The Supreme Court has since spoken on this issue. Last year, it held in Opitz v. Wrzesnewskyj that “incorrect record-keeping of vouching, on its own, cannot amount to an ‘irregularity’” that would overturn an election result. The Court emphasized that our fundamental Charter-protected right to vote must be protected, in part by interpreting statutory language in a way that is enfranchising.
We also note that Mr. Neufeld did not recommend that vouching be eliminated because it is an important backup to ensure the right to vote. He did make the eminently sensible suggestion that the record-keeping requirements for vouching should be simplified. He also suggested that there should be better training of poll workers. Mr. Neufeld also recommended that the use of Voter Information Cards (VICs) should be expanded. Evidence from previous elections suggests that, for many Canadians, presenting ID to prove their current address is a barrier to voting. Four million citizens lack a driver’s license, for example. Many First Nations citizens on reserve, students, and elderly citizens in long-term care do not have utility bills in their names or other ID to prove residency. Provincial health cards do not always include an address. Individuals who have recently moved or who live in shelters often find it difficult to obtain documents with their address.
But VICs, the only document issued by the federal government that gives current address – and with an address accuracy rate higher than that of driver’s licenses – would be prohibited by Bill C-23. Why?
Under the Fair Elections Act, the Chief Electoral Officer (CEO) is permitted to provide the public only with the basic information about where, when, and how to vote. The CEO is no longer allowed to engage in get-out-the-vote campaigns. The minister says that many young non-voters lacked knowledge of the voting process and that Elections Canada should do a better job at providing this. But the Minister provides no reason why Elections Canada should not also be involved in reaching out to voters. Political parties do not target younger citizens because of low turnout among youth. Nor do they reach out to citizens unlikely to support them. We need a non-partisan agency like Elections Canada to reach out to all voters.
With respect to the Commissioner of Election Canada’s independence, we are concerned that the Fair Elections Act would jeopardize the commissioner’s ability to communicate with the public. Under the new confidentiality requirements of Bill C-23, members of the public and Members of Parliament would have no access to information about the commissioner’s investigations into electoral infractions, such as the robocalls affair. The proposed Act explicitly prevents the commissioner from providing to the public “any information relating to an investigation”. While there are narrow exceptions to this requirement, the commissioner will be effectively muzzled from communicating about investigations into electoral infractions, unless charges are laid. Marc Mayrand, in his testimony to Parliament, noted that Bill C-23 would prevent the commissioner from issuing a press release to reassure Canadians that allegations of electoral fraud are unfounded. Although the Fair Elections Act does provide that the Director of Public Prosecutions (DPP)’s report on the commissioner's activities must be forwarded to the Attorney General, who in turn must forward it to Parliament, it explicitly states that the DPP's report may not contain any details of any investigations.
The Minister does not explain why the proposed Act fails to provide the commissioner with the tools that Elections Canada has been requesting to effectively investigate electoral abuses. Why does Bill C-23 not provide the commissioner with the power to compel witness testimony? The commissioner’s independence will not result in more effective compliance if he/she is deprived of the powers needed to get to the bottom of problems like the robocalls affair.
And what of all the other concerns raised by us and others about the Fair Elections Act? Why does the proposed Act exempt fundraising expenses from the spending caps for political parties? Why does the proposed Act enable the winning party in an electoral district to provide names for central poll supervisors? Why does the proposed Act not require political parties to provide Elections Canada with receipts and supporting documentation about their election expenses? Why did the government not engage in extensive consultation with Elections Canada and the opposition parties while Bill C-23 was being drafted? Why is the government in such a hurry to push the Fair Elections Act through the parliamentary process?
We are dismayed that the Minister has dismissed the legitimate and reasoned concerns of citizens and experts alike as “hyperbole” and “hysteria.” Our cherished democracy deserves better.
Maxwell Cameron, Department of Political Science, University of British Columbia; Yasmin Dawood, Faculty of Law, University of Toronto; Monique Deveaux, Department of Philosophy, University of Guelph; Genevieve Johnson, Department of Political Science, Simon Fraser University; Patti Tamara Lenard, School of Graduate & Public Affairs, Univ. of Ottawa; Melissa Williams, Department of Political Science, University of Toronto
