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Democracy Watch reveals the 10 really unfair measures in the so-called “Fair Elections Act” and the 10 priority measures that must be added to the Act make federal elections actually fair

Group launches national letter-writing campaign to push all federal political parties to change Bill C-23 to make federal elections actually fair

 Bill C-23 not only unfairly increases voter ID requirements (making it more difficult for hundreds of thousands of people to vote), it also: hikes already too high donation limits; increases the bias of election workers; keeps election watchdogs secretive and unaccountable; creates a secret hole for increased party campaign spending; restricts pre-election interest group ad spending; keeps penalties for violations too low; fails to make false election promises illegal, and; overall keeps the voting system undemocratic

FOR IMMEDIATE RELEASE:

March 17, 2014

OTTAWA – Today, Democracy Watch called on the federal Conservatives to make the so-called “Fair Elections Act” (Bill C-23) actually fair, and detailed the 10 really unfair measures in the much-delayed bill which was supposed to be introduced in Parliament in September 2012, and the 10 missing measures that must be added to the bill to correct unfair flaws that already exist in Canada’s federal elections system.

“The federal Conservatives’ so-called Fair Elections Act takes many giant leaps backwards that will make federal elections much less fair, and also fails to correct many unfair flaws that already exist in the federal election system,” said Duff Conacher, Board member of Democracy Watch.  “The Conservatives fully deserve the many criticisms Bill C-23 has faced because it has many more bad than good measures, is another omnibus-type bill full of technical changes they are trying to slip through unnoticed, and they have made many misleading statements about the bill.”

The few fairly good measures in Bill C-23 include measures requiring the registration of robocalls.  However, even in that area the bill needs strengthening to be effective at preventing fraud robocalls.

A couple of measures in Bill C-23 that have been criticized by many commentators are, in Democracy Watch’s opinion, not areas of concern (To see Backgrounder Part I, click here).  First, the Chief Electoral Officer (CEO) is not gagged by Bill C-23, and will clearly still be allowed to provide information to voters in imaginative ways and places – including through ads that have a headline encouraging voting, and including through high school mock-votes or other voter turnout public education programs.  The CEO will also still be allowed to conduct surveys, report on those surveys, and file reports with Parliament containing a wide variety of information, including information about complaints Elections Canada receives alleging violations of the Canada Elections Act (CEA).

Secondly, the changing the Commissioner of Canada Elections from being a CEO appointee to being a Director of Public Prosecutions (DPP) appointee will not reduce the Commissioner’s independence from the government, nor his enforcement effectiveness.  The DPP is no more or less independent from the Prime Minister and Cabinet than the CEO, and the Commissioner already submits evidence to the DPP after each investigation, and the DPP already decides whether to prosecute in each case.

The real problems are that the Director, CEO and Commissioner (and all good government watchdogs) all need to be made much more independent from the government, and that the government has been misleading the public about their independence.

The 10 really unfair measures in Bill C-23 are as follows, each with a summary about how they should be changed (See Backgrounder Part II for more details):

  1. The prohibition on one voter “vouching” for the identity of one other voter, and on using the voter registration card (VIC) as ID — together these changes will make it more difficult for hundreds of thousands of voters to vote, and so they should be removed from Bill C-23.  Instead, add the VIC to the current list of valid ID, and empower Elections Canada, and provide it with adequate funding, to hire and fully train all election workers for elections well before each election, and to make the voter registration list and ID checking even more accurate.
  2. The failure to democratize the federal political finance system by reducing the annual donation and loan limits to an amount an average voter can afford, continuing the annual per-vote funding for parties, and requiring disclosure of all gifts and donations to all types of candidates.  In contrast, Bill C-23 hikes the annual donation limit for individuals from $2,400 to $3,000 (and during an election year from $3,600 to $4,500); hikes the amount candidates can donate to their own campaign from $1,200 to $5,000 (and to $25,000 for leadership candidates), and; allows banks to make unlimited loans to parties and candidates.  All these are hugely undemocratic changes that will only benefit wealthy donors and candidates, and facilitate corruption as occurred in Quebec.  Bill C-23 also fails to require disclosure of donations of volunteer labour, and fails to prohibit secret gifts to nomination race and party leadership candidates.
  3. The change to not count the amount spent on communications for “fundraising” purposes in the total amount parties are allowed to spend during election campaigns (a loophole that will be abused to hide millions of dollars of unaccountable spending that secretly violates campaign spending limits).
  4. The failure to empower Elections Canada to appoint all election workers – in contrast the bill extends the dangerously unethical power of political parties and candidates who won or came second in the previous election to force returning officers to appoint the deputy returning officers, poll clerks, registration officers and central poll supervisors that they choose.
  5. The failure to empower Elections Canada to appoint the auditors for all the parties, riding associations and candidates – instead, the bill continues to allow these entities to choose their own auditors (which is a recipe for corruption).
  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 failure to require the Director of Public Prosecutions (DPP) to publish their reasons whenever they decide not to prosecute or agree to a plea deal.  In contrast, the bill includes a dangerously secretive new rule that requires the Commissioner and the DPP to keep the evidence and rulings for all investigations secret (unless a prosecution or compliance agreement happens).  This excessive secrecy will make it impossible to hold the CCE and the DPP accountable if they make unfair, biased or improper rulings or enforcement decisions.
  7. The restriction on some pre-election campaign advertising spending by interest groups (which means the costs of an ad run just before an election and into the election period could count as part of the total amount an interest group is legally allowed to spend on ads during an election campaign) – and the failure to also restrict pre-election ad spending by parties and candidates (including via their riding association).
  8. The failure 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, and the failure to 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.  In contrast, 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.
  9. The failure 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) and 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 up to one year to challenge a fraudulent election result (voters only have 30 days now), and 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 (which will make it more difficult to challenge election results).

The 10 missing measures that must be added to Bill C-23 to make federal elections actually fair are as follows, generally in order of priority:

  1. Prohibit parties and candidates from baiting voters with false election promises or advertising, and from breaking election promises (unless truly unforeseen circumstances require them to be broken).
  2. Change the federal election voting system to provide a more accurate representation of the popular vote results in each election in the seats held by each party in the federal House of Commons (as in many other countries) while ensuring that all elected officials are supported by, and are accountable to, voters in each riding/constituency (with a safeguard to ensure that a party with a low-level, narrow-base of support does not have a disproportionately high level of power in Parliament), and also actually fix election dates for late fall every four years (unless an actual vote on non-confidence occurs earlier).
  3. Regulate nomination races to ensure party leaders can’t appoint candidates or stop candidates from running (other than on grounds of “good character” such as no criminal convictions) and to ensure nomination races “are conducted in a fair, transparent, and democratic manner” (quotation is from the Conservatives’ 2006 election platform that promised to make changes) give Elections Canada the power to run nomination races and enforce the rules.
  4. Have Elections Canada determine the date and number of election debates, and oversee them, with the leader of every party that won at least 5% of the popular vote in the last election or that has at least one MP in the House of Commons allowed to participate, and require all broadcasters to broadcast the debates.
  5. Give the Commissioner of Canada Elections (CCE), and the CRTC, the clear power to apply for a court order that compels a person to testify, or a person or entity to disclose records, needed to investigate alleged violations of the CEA (as Elections Canada recommended in its 2012 report, and as election watchdogs in New Brunswick, Nova Scotia, Quebec, Ontario, Manitoba, Alberta and Yukon, and Australia and the U.S. can do, and as the Competition Bureau of Canada can do).
  6. Require political parties, riding associations, candidates and third parties to provide any document requested by Elections Canada or the CCE to confirm compliance with the CEA, as recommended by Elections Canada.
  7. Create a right to refuse to cast a ballot (as Ontario and Alberta voters have) or to vote “none of the above” and require election commissions to report how many Canadians do so (so voters can, if they want to, send a clear message that they do not support any of the candidates or political parties).
  8. Allow independent candidates to raise money in-between elections (currently only party-backed candidates are allowed to do this, through their local riding association or their party that then transfer money to them once their election campaign begins).
  9. Give whistleblowers a financial reward if they disclose evidence to Elections Canada, the CCE, or the CRTC that leads to a conviction.
  10. Extend the federal Privacy Act and Personal Information Protection and Electronic Documents Act to cover political parties, riding associations and political candidates, as Elections Canada recommended in its 2012 report.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Board member of Democracy Watch
Tel: 613-241-5179
Cell: 416-546-3443
Email: [email protected]


Democracy Watch’s Fair Election Act Campaign

Trudeau’s next smart moves on Senate reform should include House and elections reform


This op-ed by Democracy Watch Board member Duff Conacher was published on February 17, 2014 by HuffingtonPost.ca and on February 20, 2014 by TroyMedia.com


Justin Trudeau’s recent smart initiative to reform the Senate came with vague promises of future changes.  The promises were almost obscured by his first move of kicking Liberal senators out of the party’s caucus and prohibiting them from being “organizers, fundraisers or activists in any form” for the Liberal Party.

Should he have consulted widely before making this move?  Of course — it is always best to make democratic reforms using democratic processes.  But my guess is Trudeau was hoping some senators would protest the sudden loss of their “entitlements” as that would highlight how necessary it was to take away the privileges senators have abused since the country was created.

And if he had consulted with the senators he would have given them legitimacy that they simply don’t have given their patronage jobs and roles as party “bagmen” fundraisers as well as inside government lobbyists for the big businesses many of them serve as board directors.

In addition, he turned the tables on the NDP by stealing their proposal from last fall to make senators non-partisan and prohibit them from campaigning, and on the Conservatives by changing the Senate more in one day than they have in eight years.  As well, he distanced himself a bit from any senators found guilty in the next year by the Auditor General of violating Senate spending rules.

Still, Trudeau’s promises of future Senate reform are far more important than kicking out the senators as they will still be Liberals, and they will still attend meetings of party members and make donations and be members of party riding associations.

If Trudeau wants to avoid allowing obvious, pointed questions to fester and undermine the momentum he has captured on Senate reform, he should now do four things to clarify the decidedly vague promises he has made to establish a new appointment process, and to make at least some of the other Senate changes that the Supreme Court of Canada rules Parliament can do alone.

First, Trudeau should clarify what he meant when he said that, if the Liberals win the next election, he “will put in place an open, transparent and non-partisan appointment process for Senators.”

He should expand that promise and commit to establishing the independent Public Appointments Commission that the Conservatives promised in the 2006 election to conduct merit-based, public searches for all Cabinet appointments, not just Senate appointments.  That would neutralize criticism by the Conservatives.

He should also make it clear that at least a majority of federal party leaders with MPs in the House (or all of them) will be empowered to approve the members of the Commission to ensure it is fully non-partisan and independent.  As well, he should clarify that the Commission will come up with a short list of nominees for every appointed position but that he and Cabinet will retain the power to choose from the short list.  That would neutralize almost all the other criticisms of his promise.

And if he sets out these details now, Trudeau will be able to say that he is establishing an appointment system that matches best-practice international standards for restricting partisanship, patronage and cronyism.

Secondly, Trudeau should acknowledge that while he may believe that Canadians have no desire to re-open the Constitution, surveys show that a majority of voters want some changes.  True, most of the changes voters want are to unwritten constitutional conventions – a February 2013 survey found (55%) want a democratically chosen head of state, and a December 2012 survey found that 84% want restrictions on key powers of the Prime Minister and provincial premiers with clear written rules that can be enforced.

However, some of the changes voters want very likely require changes to the written Constitution – for example recent survey showed that more than 70% of Canadians want the Senate reformed or abolished, and that a majority support changes so that Quebec will ratify Canada’s Constitution as the federal government and other provinces did in 1982.

Thirdly, given the above survey results about the Senate, Trudeau should retract the statement he made in his interview with the CBC’s Peter Mansbridge that it is “irresponsible” to propose abolishing the Senate.  Not only is abolition supported by as many voters as reform is, there are also many good reasons for it.

The Senate is unelected, unaccountable, unrepresentative, secretive, unethical, undemocratic and redundant.  Most senators have their jobs only because they did favours for a Prime Minister or ruling party, and they have it (with the public paying their salary) until age 75 even if they do little or nothing.

Yes Senate committees do some good studies, and a few senators are good advocates on various issues, but they almost always simply echo reports produced by privately funded think-tanks or NGOs, or by political parties, House Committees, the Library of Parliament etc.  If the Senate is abolished, those few good senators can continue their advocacy by joining one of those other organizations.

Democratizing the Senate also causes all sorts of difficult problems, most importantly how will disputes with the House be resolved without the gridlock so common in the U.S. Congress.  If it is abolished, everything people want from the Senate could be done by MPs if the House of Commons is reformed to add more seats from the regions (so that a majority can’t be won with seats only from Ontario and Quebec), to free and empower MPs, and to empower opposition parties.

As well, even if elections or a new Senate appointment system was implemented tomorrow it would take 10 years before a majority of senators would be selected through the system (some may retire early, but 31 senators are required to retire by the end of 2019, and 31 more between 2020 and the end of 2024).  The pace of required retirements slows after 2024 to a few each year on average, and as a result it will take until the end of 2049 before all the current senators will be gone.

In addition, the Supreme Court of Canada will very likely rule this year that changing the selection process for senators in any significant way can only be done by amending the written Constitution.  As a result, reforms that make the Senate fully democratic will likely be just as difficult, and take just as long, as abolishing the Senate.

So overall, shutting down the Senate is the easiest, least costly, and best solution – much better than continuing to try reforms for decades more that have all failed in the past 147 years.

As a result, while he has made one quick strategically smart change to the Senate (without consulting broadly), and committed to changing the Senate appointments process if he becomes Prime Minister (a change he should clarify very soon), Trudeau should keep an open mind on future Senate reforms, and an open mind on related House of Commons and elections reforms.

That House reform process has already begun.  Trudeau himself made promises during his leadership campaign to act differently as a political leader, and Conservative MP Michael Chong has put the pressure on with his bill proposing to empower MPs and restrict the powers of party leaders.

So the fourth and final smart thing Trudeau should do now is begin to develop proposals to change the rules not only for all political leaders and politicians, but also for all parties and the voters who support them.

After all, of the total population of about 34 million Canadians, about nine million are age 15-34 (not old enough to vote in the 1990s referendums) and another five million have immigrated to Canada in the past 20 years.  As a result, about 14 million Canadians (41% of the total population) have never been asked by the federal government what they think of Canada’s Constitution or Senate or House of Commons, or elections.

Trudeau would be smart to ask them, and all Canadians, what they want before making his final decisions about further reforms vs. abolishing the Senate, and about reforming the House of Commons and elections and other related parts of Canada’s Constitution.  And he should follow their lead to make it clear he is committed to fully democratic reforms, not just his own ideas.

Duff Conacher is a founding director of Democracy Watch, Canada’s leading democratic reform organization


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