Three constitutional lawyers say the Conservatives’ proposed Fair Election Act is unconstitutional because it weakens public trust and confidence in the integrity of the electoral process. They predict it will face a constitutional challenge in court.
Steven Schrybman, lawyer for the six voters representing the hundreds, if not thousands, of voters disenfranchised in the 2011 federal election due to the infamous robocalls affair, and Micheal Vonn, policy director for the B.C. Civil Liberties Association, say the Conservatives’ proposed election law violates the Canadian Charter of Rights and Freedoms.
And last week, Dr. Paul Thomas, University of Manitoba Professor Emeritus of Political Studies, told the House of Commons Standing Committee on Bill C-23 that he fears both the process by which the bill was formulated and is being passed in Parliament as well as its substance “will further weaken public trust and confidence in the integrity of the election process, the one democratic activity in which a majority of Canadians participate.
“Sound electoral governance arrangements based on as much consensus as possible contribute in important ways to public trust and confidence in the election process and to democratic legitimacy for the outcomes,” he continued.
Section Three of the Charter says any citizen of Canada has the right to vote in any election for members to the House of Commons or the legislative assembly and to be qualified for membership therein, Schrybman said in an interview.
“So the right to vote is constitutionally protected under the Canadian Constitution. Therefore, the vouching prohibition is unconstitutional. Any provision of the bill that interferes with the exercise of this right would be unconstitutional unless, under Section One of the charter it can be defended as a reasonable limit on that constitutional right. It is very clear that provisions of the bill that in some way interfere or impede the right of citizens to vote obviously could be challenged as being unconstitutional.”
“I can’t imagine that, having heard what the government has heard at this juncture, they are unaware that this (the Fair Elections Act) is constitutionally suspect,” Ms. Vonn says. She says that the BC Civil Liberties Association is monitoring the situation and may take legal action.
“Yes, it is perfectly fair to say this is the kind of issue that falls right into the heart of our mandate,” she continues. “I am certainly not aware of anyone who has any knowledge of the bill who does not feel alarmed.”
Schrybman admits he doesn’t know exactly how many provisions of the bill are vulnerable to a charter challenge. “Certainly vouching rules that make it difficult or prevent people from voting who would otherwise be qualified to vote or who are now qualified and able to vote would be open to a charter challenge. That, obviously, would be a target.”
Also, “the provisions that would muzzle the CEO are arguably an interference with this right (the right to vote) under Section Three of the charter because it denies Canadians, including the ones I represented in federal court, the information they need in the case of voter fraud to actually exercise their right under the act to defend their constitutional franchise. And there may be other provisions of the act that run afoul of the charter so I’m sure people are looking at the act through that perspective of the constitutional provisions on the right to vote.”
Schrybman says he assumes the government won’t amend the bill. “We’ll see.” He makes that assumption because, he continues, “ the bill suits their purposes, and will make it easier for them to be elected.
“I don’t think they care about the concerns that have been expressed about the bill because they are not concerns that particularly interest their base who aren’t paying any attention to any of this, I suspect,” he continues. “They look at this bill simply as a device to make it more likely for them to be elected. Understandably, it’s come under fierce criticism by people who don’t like them anyway and aren’t going to vote for them so they don’t care.
“It’s one of the things this government has demonstrated repeatedly,” Schrybman says. “It actually doesn’t care whether its initiatives are sound publicly or from a public policy perspective. It simply cares if they serve a particular parochial interest to remain in power or to achieve certain ideological ends. They could care less if people are unhappy with what they do.”
Schrybman appeared before the parliamentary committee holding hearings on the Fair Elections Act yesterday (April 8) to plead with MPs to rewrite the Fair Elections Act to ensure parties no longer can purloin and use opponents’ data bases to initiate voter fraud, as is widely suspected happened in the 2011 election.
“There was a deliberate attempt at voter suppression during the 2011 election,” Ontario Supreme Court Justice Richard Mosley found in the Council of Canadians’ case on behalf of six voters disenfranchised by the voter fraud that took place in the 2011 federal election.
The fraud was perpetrated by breaking into and downloading opponents’ databases to send opponents’ voters to faraway or non-existent polling stations, presumably by the Conservative Party.
“Respondent MPs engaged in trench warfare in an effort to prevent this case form coming to a hearing on the merits,” the judge ruled. “Despite the obvious public interest in getting to the bottom of the allegations, the CPC (Conservative Party of Canada) made little effort to assist with the investigation…While it was begrudgingly conceded…that what occurred was ‘absolutely outrageous’, the record indicates that the stance taken by the respondent MPs from the outset was to block these proceedings by any means.”
The prohibition on vouching clearly disadvantages all Canadians who, for many varied and numerous reasons, are unable to show proof of their address. As well, the constraints applied to the Chief Electoral Officer’s ability to communicate to voters are an infringement on his right to freedom of speech.
Therefore, Schrybman continues, the bill, if left unchanged, is open to at least two constitutional challenges, first for infringing on the constitutional right of every adult Canadian to cast a ballot and second for muzzling a senior parliamentary official from being able to fully discharge his duties to his office and to Canadian voters.
Among the amendments advanced by Schrybman are empowering the Chief Electoral Officer to receive complaints of voter fraud and to require that any such allegations be communicated forthwith to the Chief Electoral Officer, requiring the CEO make public the nature and number of such complaints in a timely manner and finally, where voter fraud is involved, demanding the election be annulled unless a judge determines such action would be unjust.
Frances Russell was born in Winnipeg and graduated from the University of Manitoba with a Bachelor of Arts degree in history and political science. A journalist since 1962, she has covered and commented on politics in Manitoba, Ontario, B.C. and Ottawa, working for The Winnipeg Tribune, United Press International, The Globe and Mail, The Vancouver Sun and The Winnipeg Free Press as well as freelanced for The Toronto Star, The Edmonton Journal, CBC Radio and TV and Time Magazine.
She is the author of two award-winning books on Manitoba history: Mistehay Sakahegan – The Great Lake: The Beauty and the Treachery of Lake Winnipeg and The Canadian Crucible – Manitoba’s Role in Canada’s Great Divide. Both won the Manitoba Historical Society Award for popular history.
She is married with one son and two grandsons and lives in Winnipeg.