Fairness is in the Eye of the Beholder

Today, Canada’s Minister of Democratic Reform finally tabled the “Fair Elections Act,” claiming it is designed to protect the fairness of federal elections.  The Honourable Pierre Poilievre stated that the “Act will ensure everyday citizens are in charge of democracy by putting special interests on the sidelines and rule-breakers out of business.”

No doubt the Act includes some positive and much-needed provisions:

  • Amendments designed to remedy the famous Guelph Robocall controversy aim to protect voters from rogue calls impersonating Elections Canada Officials.
  • Making the Elections Commissioner report to the Director of Public Prosecutions, rather than the Chief Electoral Officer, should ensure independence, notwithstanding the lack of cogent evidence that the current arrangement lacked independence.
  • Eliminating “vouching” for voters lacking the proper identification is long overdue and a no-brainer. The removal of the ban on reporting premature election results is not necessarily positive but is necessary in the age of twitter, blogs and the Supreme Court of Canada’s pronouncements on freedom of expression.

However, the reforms do little to address the inherent and institutional unfairness in Canadian elections.  I am not referring to the electoral distortions perpetuated by the winner take all, First Past the Post System that produces “majority” governments.  I am referring to the explicit bias towards political parties in Canada’s election financing laws.

Most Canadians (over 98%) do not belong to political parties. Yet political parties (and local riding associations) have the exclusive right to raise money and issue tax credit receipts outside of an election period.

Whereas the Conservative Party can raise money 52 weeks per year, an Independent candidate can only issue receipts after he or she has been declared a Candidate by Elections Canada.  To be declared a Candidate, not only must an election have been called, but the Independent Candidate must have filed the requisite number of nominators and a $1,000 deposit with a Returning Officer.

Worse, a party candidate may transfer any electoral surplus to a riding association or registered party, while an Independent Candidate must remit surplus funds to the Receiver General of Canada.  Finally, a party-endorsed Candidate is eligible to receive 50% reimbursement for qualified election expenses, provided the Candidate received 5% or more of the votes.  Independent Candidates are not similarly qualified for a refund.

The combination of those two aforementioned rules means than in the 2015 General Election, the Conservative Candidate will be campaigning to unseat me using, in part, funds that I raised or was reimbursed for in 2011!

Given the importance of electoral financing in elections, the deliberate handicapping of independent candidates should be self-evident.  To be competitive, even a modest campaign is going to require an investment of $40,000 for rented office space, lawn signs, brochures, telephone and internet service, and some local newspaper advertising. I suspect that I will start the October 2015 Campaign $50,000 behind the CPC torchbearer.

I am not entirely convinced these financing provisions are constitutional in a free and democratic society.

Section 3 of the Canadian Charter of Rights and Freedoms provides: “Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

So what about the vast majority of Canadians who choose not to join a registered political party? Certainly they can vote and Independent Candidates can seek office.  But is doing so on such an unleveled playing field a violation of their democratic rights?

In 2003 the Supreme Court of Canada hinted that it might be. In Figueroa v Canada, Mr. Justice Iacobucci wrote that section 3 protects not just the right to vote but also the right to participate.  It protects the “right of each citizen to play a meaningful role in the process.”  For a violation to exist there must be a prohibition against meaningful participation.

The Court opined that a voter must have an opportunity to balance various ideas in his or her own mind before meaningfully participating in an election. Putting various ideas before the voter requires access to financial resources.

Canada’s electoral financing laws are unfair and possibly unconstitutional.  However, given their bias in favour of registered political parties, I anticipate little support or sympathy from either the Government or the Opposition Parties.

13 comments for “Fairness is in the Eye of the Beholder

  1. R. Brady
    February 4, 2014 at 3:52 pm

    You are a much appreciated breath of fresh air. If it wasn’t for Kady, Elizibeth and you keeping my interest and faith in an informed Democracy alive, I would turn my back on the mess we are in right now. We need the informed independent opinions that you express in the mainstream media. I am of very limited resources and wish I could do more than cheer from the cheap seats. Please keep doing what you’re doing, I believe our Country is in danger and we need more like you, working for the people instead of the “Party”.

    • Neil Kitson
      February 4, 2014 at 7:22 pm

      I agree.

  2. Stephanie
    February 4, 2014 at 5:00 pm

    I have been following you with interest since you took back your independence as an MP. Even before this decision, I heard an interview with you on As It Happens about changes related to the labour movement, and your comments were much appreciated.

    I take issue with your statement here that it’s time to eliminate “vouching” for voters lacking the proper identification, that this move is “long overdue and a no-brainer.” It’s interesting you say this and then later in your blog, you quote “Section 3 of the Canadian Charter of Rights and Freedoms provides: “Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.””

    Whether we like it or not, we have many people in Canada who don’t possess identification. And there are also people, even many working people, who have no fixed address. We’ve heard many stories from places such as Calgary where people have jobs but can’t afford a place to live, so they end up living in shelters. What will happen to these Canadian citizens who, by virtue of being Canadian citizens, have the right to vote but may not have the proper ID or a fixed address? What will we do with the people who are literally living on the street? Do we just throw up our hands and say too bad, that’s your fault, you don’t get to vote? Are we saying by being homeless, they are renouncing their Canadian citizenship? The reasons for homelessness are varied and extremely complicated, and you know this.

    The system of vouching worked well. I have been an election official both federally and in my home province, and as long as the processes were followed properly, it worked well. And as someone who lives and works in the inner city, I have seen the look on the faces of some of these people when they come to the polling station and cast a ballot. They leave with their heads held up, even just a little bit more, because they have done the one task required in a democracy, they have stepped up as a citizen and voted.

    I strongly encourage you to reconsider the statement you’ve made here, maybe talk to people working in the inner city in Edmonton to ask what these changes might mean to the people they serve.

    Thank you.

    • Brent R
      February 5, 2014 at 8:53 am

      Good Comments Stephanie.

      I certainly do not want to disenfrancise any voters. However, I have witnessed gross violations of the “vouching” system both in nominations and in elections. I have seen a dozen or more “voters” deliberately bused to the wrong electoral district and then vouched for by candidate operatives. Often there was a language barrier and the vouched for voter was unaware that they were being used in a manipulation.
      I am less suspicious of voters who swear statutory declarations confirming that they are eligible to vote and have not already voted. But I am very suspicious of party operatives impersonating vouchers to try to advantage their candidate.
      But I will take your advice and put some more thought into it.

      B.

      • Stephanie
        February 5, 2014 at 12:39 pm

        Thanks Brent. I take your point about the process being manipulated by some, and I think this is a reflection of the hyper partisanship that has infected our electoral system. I know during the last election exercise, there were mechanisms in place to confirm the identity of people living in shelters, for example. If a voter was living at a shelter but didn’t have the proper ID, the shelter added the voter’s name to a master list to be forwarded to the Returning Officer and Deputy Returning officer, and the voter received a document to take to the polling place. Usually shelters have confirmed ID through contact with provincial health or social services. I think this worked reasonably well.

        The other related issue in this new bill comes up around limiting the amount of education the CEO can undertake. In order for homeless, eligible voters to know what they must do to vote, Elections Canada needs to be actively engaged with agencies who serve these people at the community level.

        I appreciate you giving this thought. I also hope the government doesn’t use closure on this bill, because the changes being proposed are significant. The lack of thorough consultation with the CEO is troubling because implementing the changes will require detailed study, as the example above shows. It’s one thing to make policy, it’s another to clarify the mechanics of implementation.

        Keep up your good work!

      • ken Cunningham
        February 7, 2014 at 1:31 pm

        http://www.thestar.com/news/canada/2014/02/05/election_bill_reveals_conservatives_view_on_voter_turnout_hbert.html

        I’m disappointed that you see so little evidence of the man behind the curtain here Mr R. You make a good case against sleazy insider vouching but none against the SH approach to this problem.[ unless you happen to feel this just politics and a Liberal govt would have pulled the same levers if positions switched – no evidence for it imo]
        I believe ECs wanted to deal with this through some form of voter id – now shot down – this would have been a considerable improvement on PP’s highly partisan approach. In my partisan opinion[ i’m a federal Liberal] this amounts to a gag order and a triumph of ideology over precedence and consensus/ consultative govt.
        I wish you’d said more.
        That said i’m an admirer and wish you well. If only all parties had a few more gooduns like you who are prepared to put principle and country before Party our polity would be much healthier. Keep it up.[and look for my cheque come E day]

    • Joseph Savon
      February 6, 2014 at 10:11 am

      Stephanie is right when she says requiring photoID would disenfranchise the poor. Similar tactics have been tried by Republicans in Texas & Florida where poor & minorities traditionally vote Democrat. Of course, as BrentR observes, there need to be strong proceedures&penalties to deter abuse. At least, those vouching should provide poll officials with picture ID, and official record of the transaction should be kept. Voting is just one of many areas where requirements for photoID impede the work of those trying to help street people.

  3. joseph savon
    February 4, 2014 at 7:09 pm

    A] ” explicit bias towards .. parties” Yes! and this abuse extends to inequities in treatment of independents once elected, e.g. the “committee marathon” complained of by E. May, and other financial and procedural discrimination against independents enshrined in the Parliament of Canada Act
    B] “ban on reporting premature.. results” If those in the West let their vote be influenced by results in the East, they don’t understand the value of the franchise.
    C] “voters lacking the proper identification” Careful! Recent US experience shows us difficulties ensuring fairness in Voter ID laws …
    D] “right of each citizen … in the process.” Citizens should be free to organize to find & support a candidate PROVIDED funding is limited to modest sums from real individuals only, no corporate or institutional “persons” However, these groups should have no standing in Parliament, if & when their candidate is elected.
    Perhaps we should have listened to George Washington when he said
    “The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.”

  4. Amanda B
    February 4, 2014 at 11:27 pm

    Hang in there Brent. Whatever the CPC raises to try and unseat you in Edmonton-St. Albert won’t be enough. I think we are tired enough of the establishment and certainly the tired old ways. I think the CPC are in for a rude awakening no matter who they run against you.

  5. Kathy Kashuba
    February 5, 2014 at 8:36 am

    I supported you with your bill to publish salaries over $180,00 (I think it was) and was greatly disappointed in the actions of the other 6 CPC members on the committee who followed like lemmings and voted against your bill. My own MP Earl Dreeshen was included in nay sayers. I think we are all tired of the party dictates and would gladly welcome MPs who actually represent us, and vote on issues we want, and who govern for the people not for themselves. I support Stephen Harper as PM but am greatly disappointed with the situation of our government in general. More independent people should be able to run for office without all the impediments put in the way.

  6. Myron J
    February 5, 2014 at 11:39 am

    Would it work to create an Independent Candidate Party (or some more appropriate name) that would exist purely for the non-political purpose of enabling serious Independent candidates to meet EC regulations and allow you to register an EDA, raise funds and get around the pre-writ constraints that you face as an Independent MP?

    • Joseph Savon
      February 6, 2014 at 3:36 pm

      Great idea! … and the name is totally appropriate. It would remind everyone that a “Party” is only legitimate as a collective for people co-operating to advance the public good (as they see it(:-}) not, as a present, a tribal anachronism for power trips and the advancement of narrow special interests contrary to larger public interest.

  7. Kimberly Stevens
    February 7, 2014 at 7:35 am

    Regarding the funding of political parties, I would like to see a return of the per vote subsidy. It was fair and should be extended to Independents. I would like to see donations to political parties be completely non-deductible. I am saddened and sickened by the overall state of politics in Canada, and I don’t appreciate that those who donate to political parties get up to 75% back on their taxes from general revenue provided by all Canadians partisan or not. The current system should require disclosure of all uses of party funds to all Canadians, because we are paying the lion’s share. I would like to know how much money is reimbursed to party donators each year, but I am afraid of the size of that number. There are views in this country that I do not want to support, and yet I have no choice but to tacitly support them through my tax dollars.

    Mr. Rathgeber, you are a bright light. I may not always agree with you, but you have my respect.