Minister of State for Democratic Reform Pierre Poilievre’s first piece of legislation, Bill C-23 (the so-called Fair Elections Act), turns out to be a Con game. This should come as no surprise given the Minister’s record as Mr Harper’s obfuscator in chief, beginning with his full-throated defence of the 2006 ‘in and out’ expense laundering scheme perpetrated by the Conservatives.
The government’s spin on the Unfair Elections Act (and “spin” is putting politely what is now clearly a deception strategy) is a stream of “war is peace” doublespeak. They say they are encouraging voting when they are actively seeking to suppress many voters’ rights.
The Conservatives say they are concerned with fraud, but they turn the focus for fraud eradication topsy turvy — from a focus on everything we know about fraud that involves the Conservative Party (that was the impetus for this legislation starting with an NDP motion in March 2012), C-23 turns ordinary Canadians into the source of fraud threats.
The Conservatives say they are adding tools to fight electoral fraud when they are ultimately making it more difficult to investigate fraud. At the same time, C-23 withholds key reforms everyone of good faith knew were needed to find the truth in situations such as the use (by as yet unknown persons) of the Conservative Party’s database to engage in fraudulent phone calling across Canada in an effort to prevent non-Conservative voters from getting to their polls.
The Conservatives claim they are somehow getting “big money” out of elections when they are actually structuring a money politics through C-23 that is designed to benefit the Conservative Party in 2015 and beyond.
The Conservatives would have Canadians believe they are strengthening Elections Canada when instead the net outcome is a serious weakening. Indeed, the Unfair Elections Act is a thinly-veiled pursuit of a vendetta against the Chief Electoral Officer. At every turn, they are trying to smear this officer of Parliament as being a “player” on a “team” versus being, along with the Commissioner of Elections Canada, one of two referees on the ice. Look no further than C-23’s removal of the right of the Chief Electoral Officer to engage in democracy promotion and general public education especially targeted at more marginalized groups whose members are less likely to vote. Look also at how in C-23 the Chief Electoral Officer is put on the list of those expressly covered by the Conflict of Interest Act, when no other officer of Parliament is so singled out.
There are no fewer than 20 serious problems that I have — so far — found in the bill. But, for ease of Canadians’ understanding of the combined sneak and full-frontal attack on our already under-siege democracy, I will cluster the problems into a three themes.
1. Voter suppression:
The Unfair Elections Act removes two methods of voting that have proven effective in enfranchising voters who do not have standard I.D. documents, have no fixed address, or otherwise cannot meet the identity-proving requirements in the current Canada Elections Act. The long-standing Canadian practice of vouching allowed 120,000 people to vote in 2011. Elections Canada also expanded the use of its Voter Identification Cards (VICs) in three contexts in 2011 — youth attending university, seniors in residence, and Aboriginal people living on reserve. The exercise showed just how much potential there is for the use of VICs, plus a second piece of I.D., to allow more people to vote.
So, the Conservatives have concocted claims that vouching and VICs are the source of some sort of widespread fraud by citizens — with NO evidence for this claim — and use this as the ‘rationale’ to prohibit these forms of identifying voters. This method comes straight from the voter-suppression playbook of the US Republican Party.
At the same time, the Conservatives deliberately ignore the single most effective reform to deal with the procedural mistakes (known as “irregularities” in the Canada Elections Act) that quite frequently occur on election day, and that Pierre Poilievre is manipulatively using as the excuse to disenfranchise many thousands of Canadians: namely, the request by the Chief Electoral Officer that Elections Canada be given the authority to recruit and properly train all Election Day workers and volunteers in a timely way, well before Election Day.
Also, the Unfair Elections Act prohibits the Chief Electoral Officer from any longer engaging in general public education and democratic outreach to groups less likely to vote. The activities around the annual Democracy Week – axed. The Elections Canada civics-outreach Student Vote Program (SVP) will now be an illegal program for the Chief Electoral Officer to run. During the 2011 general election, over 500,000 students across Canada cast mock ballots through SVP, an effort designed to encourage them to vote when they turn 18. Don’t think this is not part of the voter suppression strategy of the Conservatives.
Finally, consider one of the initially puzzling changes in C-23. This is the prohibition on Elections Canada conducting any alternative voting pilot projects that involve electronic voting unless the plenary House of Commons and, wait for it, the unelected Senate give their permission. It is no longer a puzzling change, first of all, when one knows youth are expecting Canada to be ready when e-voting technology becomes more viable and, secondly, when one knows that the Senate will be Conservative-dominated for years to come.
In terms of how deliberate the C-23 voter suppression strategy is, allow me to let Canadians in the following piece of background. Well over a year ago, MPs were briefed by the Chief Electoral Officer that, in the 2015 election, Elections Canada would continue to expand its efforts to enhance voter turn-out by placing polling stations on over 20 university and college campuses across Canada, as well as in or near urban Aboriginal Friendship Centres or similar facilities. I was present with Conservative MPs during this briefing, and I can testify that the faces of several of them went either white or purple upon hearing this news.
2. Pretending to fight electoral fraud:
Pierre Poilievre’s C-23 is being spun as providing a response to the fraudulent voter calls that constituted, as the Federal Court ruled, a cross-Canada fraud. The Unfair Elections Act does the minimum to keep up appearances, namely by adopting (and adding detail to) the preventative framework I proposed in my private members’ bill C-453 — by requiring registration of voter calling services and contracts, and retention of phoning data for later access should there be concerns of fraud. C-23 also makes something that is already a crime a specifically named crime, namely, the crime of impersonating an elections official or a political party official to try to influence voters.
The Conservatives are also trying to sell the move of the Commissioner of Elections Canada into the office of the Director of Public Prosecutions, which is part of the Ministry of the Attorney-General (Minister of Justice), as an enhancement of investigative powers. Here, the security of tenure of the Commissioner for Elections Canada is strengthened, which on its face seems a welcome change — but one that in no way required the Commissioner to be pulled out of Elections Canada.
However, the reality of C-23 is that the above reforms actually are being deployed by the Conservatives as a smoke-and-mirrors, carefully constructed effort to make it far less likely electoral fraud, such as the Conservatives’ ‘in and out’ expense laundering scheme in 2006 and voter-suppression phone calls using a Conservative database in 2011, will be prevented, rigorously investigated and prosecuted.
Consider the following list of problems:
C-23 refuses to enact the single most effective measure that would enhance investigation, namely, giving the same powers to compel testimony to Commissioner investigators (and the same safeguards) as currently exist for federal Competitions Act investigations. Clearly, for Conservatives, what is good for clean competition is too good for clean elections.
C-23 ignores that part of the NDP motion that the Conservatives voted for in March 2012, which calls for Elections Canada to have the power to request (and receive) national political party documents that would enable Elections Canada to assess whether the Canada Elections Act had been complied with — and that would also make it more likely that shady schemes would be detected.
C-23 muzzles both the Chief Electoral Officer and, it would also seem (depending on how a new clause gets interpreted), the Commissioner of Elections Canada from providing Members of Parliament and Canadians with information about possible or suspected fraud that is being investigated.
C-23 prohibits the Chief Electoral Office from temporarily hiring technical experts or other specialists without the approval of the government of the day (through the Treasury Board President). The external consultants that helped the Chief Electoral Officer prepare his 2013 report on preventing fraudulent election calls could not now be hired by the CEO without Tony Clement’s say-so. The same goes for the CEO’s special advisory board of notable Canadians.
C-23 appears to remove the current ability of the Commissioner for Elections Canada to hire additional criminal investigators and forensic experts without a specific Parliamentary appropriation. Currently, the Commissioner has signing authority on what is known as the Consolidated Revenue Fund to hire as many investigative assistance as s/he needs, but C-23 is written in such a way as to eliminate this “statutory draw” for this purpose of beefed-up investigative assistance.
C-23 does not follow my Bill C-453 in trying to address the problem of foreign telecommunications service providers (for example, a North Dakota company calling into Canada). Instead of stipulating, as my bill does, that obligations to register and retain data apply to companies located outside Canada, C-23 is silent on whether a condition of doing business in Canada is the obligation to register and to retain data if one is providing election-period electronic voter contact services.
C-23 requires election calling data to be retained for only one year (Bill C-453 was already on the low end, with a two-year requirement — which may be adequate, just). Consider what happens if key evidence of fraud does not emerge until a year has passed.
C-23 is presented by Mr Poilievre in the House as adding a new punishment of (up to) a six year prison term for the crime of impersonation of an elections official for purposes of preventing people from voting, when that is already the prison penalty for the existing Canada Elections Act crime of trying to prevent people from voting (by any means). So, not only does C-23 do nothing new on the jail time side, it comes in very low in terms of the fines that can be part of punishment. C-23’s top fine for impersonation is $50,000 whereas my Bill C-453 provided for $500,000 and the Chief Electoral Officer called for $250,000.
C-23, as noted, adds the ‘new’ crimes of impersonation and obstructing an Elections Canada investigation. On any competent and good faith legal view, these provisions simply create more precise expressions of conduct that is already criminal under the general fraud provisions of the Canada Elections Act and associated provisions of the Criminal Code. Yet the Harper and Poilievre answers in the House on Thursday, February 6, to questions first posed by Leader of the Official Opposition Tom Mulcair make clear that the Conservatives are trying to create space for the phoney ‘legal’ argument that goes as follows: because these ‘new’ crimes are added by C-23, they are not already crimes. Only the very worst of Harper appointments to the courts would ‘buy’ this argument. Cynicism in the extreme.
C-23 brings nothing new to the table when it comes to finding ways to prevent fraudulent election calls conducted by rogue actors or without formal approval from a political party’s decision-makers. For example, once the Federal court held in a spring 2013 judgment that the Conservatives’ voter-contact database had been used to conduct a widespread fraud effort in the 2011 election, lawyers for the government should have clued into a possible option grounded in ‘law and economics’ and risk-allocation theory: impose major regulatory fines on the basis of non-criminal strict liability of political parties for the very fact of their databases being used for fraud. Yet, nothing like this option appears in C-23.
3. Worsening the distorting impact of money politics on our democracy:
The government trumpets its bill as somehow being about keeping “big money” out of federal party fund-raising and election campaign financing, but how believable is this when we consider the following changes in C-23?
The Conservatives are jacking up maximum individual donations from $1200/year to $1500/year. Nobody asked for this. So, why is it there? Well, the Conservatives receive 20% of their donations from people who can afford to give $1200, more than the Liberals and far more than the NDP. Presumably, creating head room for an extra $300/year from better-off donors is the reason for this change — indeed an extra $300 from donors who don’t care about tax credits (because C-23 increases the donation limit while not increasing the tax credit limit).
C-23 re-introduces a scheme from a previous Political Loans Bill that representatives of Canadian banks made clear, in committee testimony in fall 2012 and in direct consultations I conducted, was unworkable in important respects. The likelihood of banks providing start-up loans for campaigns under this scheme is clearly limited, or at the very least unpredictable. This will benefit candidates from parties that have enough cash on hand to transfer to their candidates or that will guarantee loans to their candidates. I will leave to your imagination which party that describes.
Then there is the Moby Dick of loopholes in C-23. From here on, parties do not have to count as campaign expenses any phoning of previous donors (defined as anyone who has given at least $20 over the previous 5 years). This will advantage a party with large donor bases and, more importantly, with the extra cash on hand to pay for this kind of fund-raising in the first place. But, most worryingly, the C-23 provision is worded in such a way that fund-raising apparently does not have to be the sole or even primary purpose of contacting a voter. This means a party can add a brief, pro forma request for a donation as a tag within what is otherwise a call designed to solidify a vote and/or get out the vote. This effectively creates an unlimited phoning budget for campaign calls to anyone who has given a mere $20 sometime in the past 5 years.
Quite apart from taking contacts of previous donors out of campaign expenses, C-23 also increases spending limits for campaigns by 5% — which creates a distinct advantage for any party with fuller coffers.
Riding-level candidates can now give their own campaigns $5000, and leadership candidates $25,000. This gives a leg up to persons with more resources.
Clearly, the Conservatives are using this bill as a way to try to stack the deck in their favour for the 2015 election, and beyond.
No wonder the process the Conservatives have carefully planned has unfolded as it has: it is designed to short-circuit awareness, scrutiny, and opposition.
There was a 17 month delay from the month they had committed to table this bill (promised for September 2012). Then, there was no consultation with Elections Canada or with other parties and MPs in the House — something that had been the tradition when it comes to changes to such a foundational statute in our system as the Canada Elections Act.
Then, a lengthy 240-page bill was tabled one day and debate forced to begin the very next day. Next, the government refused to agree to the NDP motion to send the bill to committee study after First Reading, which procedure allows for wholesale changes to a bill (which are precluded when a bill goes to committee only after Second Reading).
And the procedural war continues. After three speeches in the House, the government moved to curtail Second Reading debate with a time allocation motion that will result in a total of three days of debate only.
Let us finally not forget that, surprise, surprise, the Unfair Elections Act arrived in the House just when Canadians will naturally be focusing on the Winter Olympics.
Welcome to the upside-down, indeed perversely manipulated, world of Stephen Harper and Pierre Poilievre.
Craig Scott is an MP (Toronto-Danforth) and Official Opposition/NDP Critic for Democratic and Parliamentary Reform.
This post originally appeared on Craig Scott’s page and is reprinted with permission.
Photo: flickr/postbear eater of worlds