Make Fair Elections Act actually fair

Today, Democracy Watch called on the federal Conservatives to make the so-called “Fair Elections Act” (Bill C-23) actually fair, and detailed the 10 really unfair measures in the much-delayed bill which was supposed to be introduced in Parliament in September 2012, and the 10 missing measures that must be added to the bill to correct unfair flaws that already exist in Canada’s federal elections system.

Duff Conacher, a Board member of Democracy Watch, says the federal Conservatives’ so-called Fair Elections Act takes many giant leaps backwards that will make federal elections much less fair, and also fails to correct many unfair flaws that already exist in the federal election system.  The Conservatives fully deserve the many criticisms Bill C-23 has faced because it has many more bad than good measures, is another omnibus-type bill full of technical changes they are trying to slip through unnoticed, and they have made many misleading statements about the bill.

The few fairly good measures in Bill C-23 include measures requiring the registration of robocalls.  However, even in that area the bill needs strengthening to be effective at preventing fraudulent robocalls.

A couple of measures in Bill C-23 that have been criticized by many commentators are, in Democracy Watch’s opinion, not areas of concern (To see Backgrounder Part I, click here). 

First, the Chief Electoral Officer (CEO) is not gagged by Bill C-23, and will clearly still be allowed to provide information to voters in imaginative ways and places – including through ads that have a headline encouraging voting, and including through high school mock-votes or other voter turnout public education programs.  The CEO will also still be allowed to conduct surveys, report on those surveys, and file reports with Parliament containing a wide variety of information, including information about complaints Elections Canada receives alleging violations of the Canada Elections Act (CEA).

Secondly, changing the Commissioner of Canada Elections from being a CEO appointee to being a Director of Public Prosecutions (DPP) appointee will not reduce the Commissioner’s independence from the government, nor his enforcement effectiveness.  The DPP is no more or less independent from the Prime Minister and Cabinet than the CEO, and the Commissioner already submits evidence to the DPP after each investigation, and the DPP already decides whether to prosecute in each case.

The real problems are that the Director, CEO and Commissioner (and all good government watchdogs) all need to be made much more independent from the government, and that the government has been misleading the public about their independence.

The 10 really unfair measures in Bill C-23 are as follows, each with a summary about how they should be changed (See Backgrounder Part II for more details):

1. The prohibition on one voter “vouching” for the identity of one other voter, and on using the voter registration card (VIC) as ID — together these changes will make it more difficult for hundreds of thousands of voters to vote, and so they should be removed from Bill C-23.  Instead, add the VIC to the current list of valid ID, and empower Elections Canada, and provide it with adequate funding, to hire and fully train all election workers for elections well before each election, and to make the voter registration list and ID checking even more accurate.
2. The failure to democratize the federal political finance system by reducing the annual donation and loan limits to an amount an average voter can afford, continuing the annual per-vote funding for parties, and requiring disclosure of all gifts and donations to all types of candidates.  In contrast, Bill C-23 hikes the annual donation limit for individuals from $2,400 to $3,000 (and during an election year from $3,600 to $4,500); hikes the amount candidates can donate to their own campaign from $1,200 to $5,000 (and to $25,000 for leadership candidates), and; allows banks to make unlimited loans to parties and candidates.  All these are hugely undemocratic changes that will only benefit wealthy donors and candidates, and facilitate corruption as occurred in Quebec.  Bill C-23 also fails to require disclosure of donations of volunteer labour, and fails to prohibit secret gifts to nomination race and party leadership candidates.
3. The change to not count the amount spent on communications for “fundraising” purposes in the total amount parties are allowed to spend during election campaigns (a loophole that will be abused to hide millions of dollars of unaccountable spending that secretly violates campaign spending limits).
4. The failure to empower Elections Canada to appoint all election workers – in contrast the bill extends the dangerously unethical power of political parties and candidates who won or came second in the previous election to force returning officers to appoint the deputy returning officers, poll clerks, registration officers and central poll supervisors that they choose.
5. The failure to empower Elections Canada to appoint the auditors for all the parties, riding associations and candidates – instead, the bill continues to allow these entities to choose their own auditors (which is a recipe for corruption).
6. The failure to require (finally) that the Commissioner of Canada Elections (CCE) disclose the results of investigations and his rulings on all complaints, and the failure to require the Director of Public Prosecutions (DPP) to publish their reasons whenever they decide not to prosecute or agree to a plea deal.  In contrast, the bill includes a dangerously secretive new rule that requires the Commissioner and the DPP to keep the evidence and rulings for all investigations secret (unless a prosecution or compliance agreement happens).  This excessive secrecy will make it impossible to hold the CCE and the DPP accountable if they make unfair, biased or improper rulings or enforcement decisions.
7. The restriction on all pre-election campaign advertising spending by interest groups (which means an ad run today could count as part of the total amount an interest group is legally allowed to spend on ads during the 2015 election campaign) – and the failure to also restrict pre-election ad spending by parties and candidates (including via their riding association).
8. The failure to require anyone or any entity that uses robocalls to file a copy of each robocall script and recording, and a list of the numbers called, with the CRTC for the CRTC to keep for 5 years, and the failure to require political parties to keep a record of who accesses their voter database, and to make it a violation for political parties to allow their database to be misused.  In contrast, Bill C-23 only requires people or entities that make robocalls to register and keep just the script and recording of the call for only 1 year.
9. The failure to increase the amount of all proposed fines to a level that will actually discourage violations (all the fines proposed in Bill C-23 should be 10 times higher) and the failure to require courts to impose the maximum fine unless extraordinary circumstances mean it would be unjust to do so.
10. The failure to give voters up to one year to challenge a fraudulent election result (voters only have 30 days now), and the requirement in Bill C-23 that a voter must give written notice to the returning officer when the voter applies to a judge for a recount (which will make it more difficult to challenge election results).

The 10 missing measures that must be added to Bill C-23 to make federal elections actually fair are as follows, generally in order of priority:

1. Prohibit parties and candidates from baiting voters with false election promises or advertising, and from breaking election promises (unless truly unforeseen circumstances require them to be broken).
2. Change the federal election voting system to provide a more accurate representation of the popular vote results in each election in the seats held by each party in the federal House of Commons (as in many other countries) while ensuring that all elected officials are supported by, and are accountable to, voters in each riding/constituency (with a safeguard to ensure that a party with a low-level, narrow-base of support does not have a disproportionately high level of power in Parliament), and also actually fix election dates for late fall every four years (unless an actual vote on non-confidence occurs earlier).
3. Regulate nomination races to ensure party leaders can’t appoint candidates or stop candidates from running (other than on grounds of “good character” such as no criminal convictions) and to ensure nomination races “are conducted in a fair, transparent, and democratic manner” (quotation is from the Conservatives’ 2006 election platform that promised to make changes) give Elections Canada the power to run nomination races and enforce the rules.
4. Have Elections Canada determine the date and number of election debates, and oversee them, with the leader of every party that won at least 5% of the popular vote in the last election or that has at least one MP in the House of Commons allowed to participate, and require all broadcasters to broadcast the debates.
5. Give the Commissioner of Canada Elections (CCE), and the CRTC, the clear power to apply for a court order that compels a person to testify, or a person or entity to disclose records, needed to investigate alleged violations of the CEA (as Elections Canada recommended in its 2012 report, and as election watchdogs in New Brunswick, Nova Scotia, Quebec, Ontario, Manitoba, Alberta and Yukon, and Australia and the U.S. can do, and as the Competition Bureau of Canada can do).
6. Require political parties, riding associations, candidates and third parties to provide any document requested by Elections Canada or the CCE to confirm compliance with the CEA, as recommended by Elections Canada.
7. Create a right to refuse to cast a ballot (as Ontario and Alberta voters have) or to vote “none of the above” and require election commissions to report how many Canadians do so (so voters can, if they want to, send a clear message that they do not support any of the candidates or political parties).
8. Allow independent candidates to raise money in-between elections (currently only party-backed candidates are allowed to do this, through their local riding association or their party that then transfer money to them once their election campaign begins).
9. Give whistleblowers a financial reward if they disclose evidence to Elections Canada, the CCE, or the CRTC that leads to a conviction.
10. Extend the federal Privacy Act and Personal Information Protection and Electronic Documents Act to cover political parties, riding associations and political candidates, as Elections Canada recommended in its 2012 report.

If you are concerned about what the so-called "Fair Elections Act" will mean for Canada, please take part in our letter writing campaign.