"Fair" Elections Act Charter Challenge backgrounder

The Council of Canadians and the Canadian Federation of Students will be taking the Conservative government to court for having passed Bill C-23, the “Fair Elections Act”, on the grounds that the Act will deprive tens of thousands of Canadians of their right to vote, and make it much harder for Canadians to seek redress in the event of voter fraud.

The right to vote is set out in section 3 of the Charter of Rights and Freedoms, which provides:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

The right to vote is fundamental to a democratic society and is, as the Supreme Court of Canada explains “the cornerstone of democracy.” But Canadians can be deprived of this fundamental right by rules that unreasonably deny them a ballot, or, as occurred during the last federal election, by clandestine efforts to defraud them of their vote.

Instead of resolving these problems, Bill C-23 will make them worse by muzzling the Chief Electoral Officer (CEO) and by depriving him of powers that are essential for addressing them.

Depriving Students (and Others) of the Right to Vote

Far too many young people fail to exercise their democratic franchise by voting – in the last federal election less than 40 per cent of them made it to the polls. In part the problem is a lack of engagement with politics, but for many others it is the difficulty of proving they reside in the particular polling district in which they are entitled to vote, even when they are on the voters list.

To address these problems, the CEO initiated a program several years ago to engage students in an effort to find solutions to these problems. In doing so, he relied on his authority under the Elections Act to “carry out public education and information programs to make the electoral process better known to the public, particularly to those persons and groups most likely to experience difficulties in exercising their democratic rights.”

Under Bill C-23 the CEO has been stripped of the authority to carry out such programs when directed to electors of any age. Similarly he has been stripped of his authority to use “any media or other appropriate means to convey information relating to the electoral process, the right to vote, or how to be a candidate.” According to the CEO, Marc Mayrand, these amendments impose a “severe limit on the ability of the CEO to communicate with the public.”   

By muzzling the CEO and depriving him of the essential tools he needs to inform Canadians, particularly young Canadians, about their right to vote and to engage them in the electoral process, the government has ensured that many fewer of them will cast a ballot in the next election.

Equally problematic is the government’s decision to eliminate the authority of the CEO to allow electors to use voter information cards (VIC), issued by Elections Canada, to prove they reside in the poll they may vote in. While students can readily produce ID to establish who they are, they often have no way of proving their current address. Unless they can do so, or find someone residing in the poll to vouch for them (and the government has unnecessarily made vouching rules more strict), they won’t be given a ballot, even if they are on the voters list.

Because the proof of residency requirements deprive many students (and those living on First Nation reserves and in care facilities) of their right to vote, the CEO proposed to allow electors in these groups to use the VIC to prove their residence. Bill C-23 has explicitly prohibited the CEO from doing so.

The requirement to prove residence was put in place by the Conservative minority government in 2006. Bill C-23 has now seriously compounded the problem by depriving the CEO of the ability to implement the solution he proposed. If Bill C-23 stands, tens of thousands of students and other Canadians will have considerable difficulty voting in the next election, and a great many will be unable to do so.

The Fair Elections Act not only failed to address the problem the government created in 2006, but has seriously exacerbated it by taking the tools from the CEO needed to address it. For these reasons, the Council of Canadians and the Canadian Federation of Students will be seeking orders declaring the relevant provisions of the Fair Elections Act to be unconstitutional.

Depriving Canadians of Their Right to Defend Their Democratic Franchise

Nearly a year after the last federal election, electors in six ridings across the country brought applications before the federal court to annul the results of the election in those ridings on the grounds that fraud (voter suppression calls – or ‘robocalls’ as they have come to known) affected the result. While the court declined to overturn the result of the election, it did find that “there was a deliberate attempt at voter suppression during the 2011 election” that occurred “across the country” and that was “targeted towards voters who had previously expressed a preference for an opposition party (or anyone other than the government party).”

When voters are deterred or prevented from voting, they are obviously disenfranchised. When the result of the election is changed by suppressing the votes of certain electors, all of the electors in that riding are effectively deprived of their right to vote. Even more problematic is the possibility that a government might win a majority, perhaps a narrow one, by engaging in such misconduct and the temptation to do so is all the greater when the risk of detection and effective redress is very small.

The most effective deterrent to such unlawful activity is the risk of annulment of an election fraudulently won. But the right to seek annulment under s. 524(1) of the Act for “irregularities, fraud or corrupt or illegal practices that affected the result of the election” is only practically available to an elector or candidate when they have timely information about the fact that election fraud has occurred.

The problem is that, because of the clandestine nature of voter suppression election fraud, it is hard to detect and may only come to light months after the election, if it becomes known at all. As we know this is exactly what happened following the May 2011 election when the widespread nature of efforts to suppress the vote of non-Conservative Party candidates were not acknowledged by the CEO until ten months after the election. It was only following those revelations that voters across the country realized that the misleading and harassing calls they had received during the election were not mistakes or isolated events.

Instead of addressing the problem of organized voter suppression by giving the Commissioner of Elections and the CEO the investigative tools they have requested, the Fair Elections Act muzzles these officials, making it far harder for electors to ever learn of these events if they reoccur.

It is fundamental to the right to vote that electors have the right to seek annulment of elections fraudulently won. Therefore by preventing electoral officials, who may be the only ones to know about such activity, from alerting electors to incidents of voter fraud, the Fair Elections Act has infringed the right of electors to defend their right to vote by seeking redress when they are defrauded of their democratic franchise. The Council of Canadians and the Canadian Federation of Students will be seeking to strike down the muzzling provisions of the Act on these grounds as well.