Backgrounder Part II on Bill C-23, the proposed so-called “Fair Elections Act”

by Democracy Watch
back to Monday, March 17, 2014 news release

To send your letter calling for key changes to make the Fair Elections Act, and federal elections, actually fair, click here

Jump to part 2

A. The 10 Really Unfair Measures in Bill C-23 (the so-called “Fair Elections Act”)

Set out below are details about the 10 really unfair measures in Bill C-23 listed in Democracy Watch’s news release.

1. Requiring more ID to vote and eliminating vouching

Not only is the elimination of “vouching” for the identity of a voter unfair, but even more so is the prohibition on using the voter registration card (known as the “voter identification card” or “VIC”) as one of the pieces of ID that voters can use to prove their identity and residence.  Why do we have a voter registration system if the registration card sent to voters under the system won’t be allowed to be considered valid ID?

The Conservatives are citing estimates from one study that don’t prove vouching fraud occurred (only “irregularities”), and are ignoring the fact that large scale fraud using vouching would be very difficult (given that under subsection 143(3) and (5) of the Canada Elections Act (CEA) each voter is only allowed to vouch for one other voter and only in their riding).

Even though 39 types of ID are accepted at the ballot box, and the CEA (under section 143(2.1) allows the CEO to add as many more as he likes, and even if only 0.8 percent of voters used vouching in the last federal election, there really is no justifiable reason to prohibit vouching.

So the measures increasing the ID required to vote should be removed from Bill C-23 (ie. delete subsections 48(1) to (4), and sections 53-54, and subsections 56(1) and (4), and sections 57, 59 and 62 of the bill) so the current voter identification system maintained that voters will be allowed to vote if vouched for by another registered voter (with the limit maintained that a registered voter can vouch for only one other voter), or if they present one piece of government ID, or one piece of ID showing their name along with another showing their name and address.

As well, the voter registration card (VIC) that Elections Canada sends out should be added to the current list of valid ID that can be presented along with another piece of ID.

Finally, Elections Canada should be empowered, and provided with adequate funding, to hire and fully train all election workers well before each election, and to make the voter registration list even more accurate (which will help prevent difficult ID situations, and also ensure that all election workers are properly checking and accepting ID).

As well, Bill C-23 should  require Elections Canada to work proactively with all the 39 institutions on its list that issue ID (and other new institutions) to ensure they all include addresses on the ID they issue.

2. Hiking donation limits instead of democratizing the federal political finance system

Concerning political donations, some commentators have claimed it is a big problem that Bill C-23 increases the election year donation limit for individuals from $3,600 to $4,500 (currently anyone can give $1,200 annually to each party, and another $1,200 as a combined total to the riding associations of each party, and another $1,200 combined total to the election candidates of each party, and all three limits will be increased to $1,500 and then by $25 each year (under subsection 80(1) of Bill C-23 which changes clauses 405(1)(a) to (c) of the CEA temporarily, and then section 87 of Bill C-23 which adds new subsection 367(1) of the CEA)).

However, the real problems are:

  • that the current donation limit is 10 times higher than an average voter can afford;
  • that the high donation limits make it easier for businesses and other organizations to funnel large donations through their executives and employees, and;
  • that the Conservatives are eliminating the most democratic part of the federal political finance system – namely the per-vote annual funding that parties receive.

As well, most commentators (and most media) have ignored the even more undemocratic political finance change in Bill C-23 – the increase in the donation a candidate can make to their own campaign from $1,200 to $5,000, and for party leadership candidates from $1,200 to $25,000 (under subsection 80(3) of Bill C-23, which adds new clauses 405(4)(4.1) to (4.3) the CEA temporarily, and then section 86 which replaces those clauses with new subsections 367(6) to (8) to the CEA).

These are huge, and hugely undemocratic, increases that will only benefit wealthy candidates.

As Elections Canada has pointed out, Bill C-23 also fails to close loopholes in the rules for campaign spending by nomination race and party leadership candidates.  Unlike election candidates, nomination and leadership candidates do not have to count goods or services as campaign expenses.

In addition, while Bill C-23 contains measures to limit loans to candidates at the same levels as donations, it allows unlimited bank loans to candidates and parties (under section 83 of Bill C-23, which changes section 405.3 of the CEA temporarily (and then under section 86 of the Bill C-23 which replaces section 405.3 with new section 370(2) of the CEA)).  Banks are regulated by the federal government, and this measure will allow them to pick and choose candidates and parties to support (likely only sure winners) and buy influence with them through loans.

So to have a fair, and democratic political donations system, the donation and loan limits must all be decreased to $200 (Quebec recently lowered its limit to $100).  And the per-vote funding must be reinstated (although it should be reduced to 75 cents annually because the past amount of $1.95 annually allowed some parties to prosper financially without having to reach out and maintain the support of voters in between elections).

Bill C-23 also fails to correct the following other flaws with the current federal political finance system:

  • donation limits and disclosure requirements are needed for “volunteer labour” donated to parties and candidates any time, including during nomination races, election and party leadership campaigns, and including disclosure of people who organize fundraising events or volunteer for riding associations, to close this existing secret donations loophole;
  • as federal political party leadership campaign candidates are required to do, all candidates, politicians, parties and riding associations must be required to disclose publicly all donations, gifts, and the status of any loans, regularly and during the week before election day, so voters know who is bankrolling them;
  • disclosure of the identity of each individual donor’s employer must be required (as in the U.S.) and disclosure of each donor’s direct organizational affiliations must also be required (to help ensure that corporations, unions and other organizations are not funneling donations through their employees or board members);
  • riding associations and political parties must be prohibited from spending the money they raise in improper ways such as giving grants to community groups or individuals as a way of buying votes;
  • riding associations and political parties must be prohibited (as federal election candidates and MPs have been) from having a secret trust fund and from taking secret, unlimited donations into the fund;
  • secret, unlimited donations to all candidates in nomination race, election and political party leadership campaigns must be banned (as they have been banned for federal election candidates);
  • as the UN Convention Against Corruption and other international standards require, the bank accounts of all public officials who have decision-making power must be monitored for suspicious transactions;
  • the penalty for taking a secret donation of money, property or services, or having a secret trust fund, or violating spending rules, must be increased to minimum $100,000 fine and a multi-year jail term, and loss of any severance payment, and a partial clawback of any pension payments;
  • a public funding system should be established that matches the donations made to any nomination race, election, and party leadership candidate who raises a specific minimum amount of money showing they have voter support;
  • the system of per-vote public funding of federal political parties should be maintained, and similar systems established across the country, but the annul amount should be only be $0.75 per vote received (to ensure that in order to prosper parties need to have active, ongoing support of a broad base of individuals) and riding associations should be required to receive a fair share of this funding (to decrease the control of party headquarters over riding associations);
  • spending limits must be established for political party leadership campaigns to ensure a level playing field for all candidates.
  • wherever election dates are fixed every few years, spending by candidates, riding associations, political parties and third party interest groups must be limited for a few months before each election day, and;
  • donations by political parties to riding associations and candidates must be limited to decrease the possibility of party headquarters influencing the selection of candidates by riding associations, and to make associations and candidates more independent from party headquarters.

3. Creation of a new secret election campaign spending loophole for political parties

Bill C-23 increases election spending limits for parties by exempting from expenses that have to be counted the costs of commercial services contracted to solicit money from contributors who have donated $20 or more in the previous five years (section 86 of Bill C-23 adds new subsection 376(3) to the CEA).

This change will create a secret hole of unreported party spending, in direct contrast to all the changes that have been made in the past 20 years to increase disclosure of election spending.  As well, Bill C-23 increases the overall amount allowed to be spent by each party by five percent (section 86 also adds news subsection 430(2) to the CEA).

4. Allowing the ruling party to appoint more election workers, instead of empowering Elections Canada to appoint all election workers

Sections 18, 19, 21 and 44 of Bill C-23 (which change subsections 34(1), 35(1) and 39(3) and (4), and 124 of the CEA, respectively) should be changed to say that the returning officer may appoint as a deputy returning officer or poll clerk or registration officer or central poll supervisor any qualified person suggested by anyone.

Currently those subsections of Bill C-23 say that if the winning or second party from the previous election suggest people to fill these positions, the returning officer can only appoint those people, which essentially ensures that the people who fill these positions all have dangerous partisan conflicts of interest).  NOTE: If this change is made, sections 36, 37 and 39-42 and 44 of the CEA should be deleted.

5. Allowing parties, riding association and candidates to choose their own auditors, instead of empowering Elections Canada to appoint all auditors

Sections 377 and 403.11 of the CEA should be changed to empower Elections Canada to appoint the auditors for all the parties, riding associations and candidates.

Allowing these entities to choose their own auditors is a recipe for corruption and violations of the election spending limits, and general donation and spending rules, in the CEA.

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 Director of Public Prosecutions (DPP) to disclose reasons for not prosecuting.

Some commentators have expressed the concern that the Commissioner of Canada Elections (CCE) will not be as effective at enforcement when the CCE is shifted from being a Chief Electoral Officer (CEO) appointee to being a DPP appointee.

No one would even be able to tell if the CCE’s enforcement record worsened because the CCE is currently not required to disclose details about his record (and doesn’t do so voluntarily).  In refusing to disclose his rulings on more than 3,000 complaints he received since 1997 when Democracy Watch requested them in April 2012, the CCE gave the unjustifiable reason that the rulings might make him look bad.

One of the past rulings that points to why the accountability of the CCE needs to be increased is the ruling on complaints about fraud robocalls in the 2008 federal election in the B.C. riding of Saanich-Gulf Islands.  Essentially, the CCE gave up on that investigation, laying the basis for the much greater fraud robocall scam in the 2011 federal election.  The CCE’s weak enforcement actions only became public because the complainants disclosed the letters they received from the Commissioner.

Bill C-23 gags the CCE by adding a new measure that prohibits the Commissioner and the Director of Public Prosecutions (DPP) from disclosing the results of investigations and the Commissioner’s rulings on complaints unless, essentially, the Commissioner does a compliance agreement with the violator, or if the DPP prosecutes the violator.  These measures are in section 108 of Bill C-23 which adds a new confidentiality section 510.1 to the CEA, and under section 146 which adds new section 16.31 to the Access to Information Act, and under section 152 which changes subsection 16(1) of the Director of Public Prosecutions Act.

It is important to note that these measures do not apply to the CEO – he would still be able to disclose information complainants submit to him alleging violations of the CEA through his annual and post-election reports to Parliament, and in testimony before parliamentary committees or interviews with the media, as well as submitting the evidence he receives to the CCE for investigation.

The DPP is also not required to publish their reasons whenever they decide not to prosecute, and whenever they decide to agree to a plea deal (as they did, very questionably, when they had clear evidence that Doug Finley and Irving Gerstein deliberately executed the in-and-out advertising funding scheme that the Conservatives used in the 2006 federal election).

So to ensure actually fair and proper election law enforcement, Bill C-23 must be changed to require the Commissioner to disclose his rulings on all complaints (after he has completed his investigation), and Bill C-23 must be changed to require the DPP to explain publicly whenever he decides not to prosecute.

7. The restriction on all pre-election campaign advertising spending by interest groups, but not on spending by political parties and candidates

While Bill C-23 increases the amounts parties can spend on elections, it sneakily decreases the advertising spending limit for interest groups and voters (so-called “third parties) by expanding the limit to cover all ads “in relation to” an election or by-election (section 78 of Bill C-23 makes this change to section 350 of the CEA).

Currently, only ads run during the election campaign period are counted, but this change means the full costs of an ad run just before an election and into the election period by an interest group or voter could be counted toward the total amount of paid advertising that an interest group or voter is allowed to run during the election period.

It makes sense to extend the limit on pre-election advertising given that federal election dates are now, sort of, fixed every four years.  The fixed election date allows parties, candidates and third parties to spend strategically before the election campaign begins, as that spending is not restricted by current limits.

The Supreme Court of Canada upheld limits on paid advertising spending during election campaign periods in the 2004 ruling in the Harper v. Canada case.  But the SCC made it clear in that ruling that the limit had to be reasonable.  The calculation of reasonable takes into account the definition of advertising, the cost of advertising (how many ads could be run), and the period of time the limit applies.  The B.C. Court of Appeal rejected a provincial limit on third party advertising spending in a 2011 ruling because the definition of advertising was too comprehensive.

The reasonable compromise that should be made is to limit pre-election paid advertising spending by third parties for the 90-day period leading up to the election campaign period, and to set the limit for that period at a reasonable amount.  The current limit for the election campaign period of 35 days is $200,100, so by extension a reasonable limit for the 90-day pre-election period would be $515,000.

However, what is not taken into account by these limits is the actual cost of advertising, which does not necessarily go up or down by the rate of inflation (which is how the legal limit is currently changed each year).  A better way to determine what both limits should be would be to take the original limit back in 2004 ($150,000) that was upheld by the Supreme Court of Canada, and to calculate how that amount should be changed annually based on a “market-basket” calculation of the actual cost of advertising.

As well, to be fair, political party and candidate ad pre-election ad spending should be limited during that 90-day period by extending the current election campaign period limitations.  Liberal Senator Dennis Dawson has introduced a private member bill to cover paid advertising by parties and candidates for that three-month period but the bill simply extends the current election spending limit to cover that period, so it doesn’t really address what the limit should be during the two periods (pre-election vs. election campaign) or whether the current limit should be increased.

8. The failure to monitor and prevent fraud robocalls fully

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.

It should be changed 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 (by changing all the sections of the CEA that are changed by section 77 of Bill C-23 to require all the entities covered by those sections.

As well, Bill C-23 should also 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.

NOTE: Despite these new measures, it will always be difficult to stop someone doing anonymous fraud robocalls through an offshore or foreign provider as it will be difficult to effectively prosecute businesses located in other jurisdictions or in the “cloud”.

9. The failure to establish effectively high fines

Bill C-23 fails 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 (by changing sections 100-107 of Bill C-23, which change sections 500-507 of the CEA — – for example increase the fine in subsection 500(1) of the CEA from $2,000 to $20,000).

As well, 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 adequate opportunity to challenge election results

Voters only have 30 days now to file a challenge to an election result for the reason that fraud changed the result – this should be changed to one year (under subsection 527(1) of the CEA).  As well, they have to file an application (under section 524 of the CEA) and they should also be allowed to file an action that allows for disclosure of evidence.

As well, 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 should be removed because it will make it more difficult to challenge election results as it may be difficult for a voter to locate a returning officer after an election. (remove it by deleting section 68 of the bill (which changes subsection 301(1) of the CEA)).