Resigning ourselves to robocalls

The “reformed” Fair Elections Act compromises Canadian democracy
June 1, 2014

Voter turnout in recent federal elections is historically low and appears to be declining. A “compromise” Fair Elections Act—reviled by most experts, revised by parliamentary committee, passed at third reading in the House of Commons, now with the Senate—will surely worsen this trend. Those who do vote regularly may find themselves more frequently, in the days and weeks before federal elections, on the phone with someone (or something) who would prefer they didn’t.

Such is the deep cynicism of the Conservative government’s eight-year Democratic Reform agenda. Since 2006, a string of ministers (Nicholson, Van Loan, Fletcher, Uppal, Poilievre) has claimed to be taking “big money” out of politics and tackling voter fraud. We found out too late it was the kind of fraud—impersonating a registered voter at the ballot box—that doesn’t happen enough to worry about. Addressing more serious kinds of fraud, for example directing voters to the wrong or non-existent polling stations, was not on the government agenda until the 2012 “robocalls” scandal forced it there.

Quite apart from previous reform efforts, the so-called Fair Elections Act was a response to this fundamental challenge to democracy: the possibility of stealing an election through expert manipulation of complex voter databases. But as written, the legislation will not prevent such abuses in the future. As experts point out, it could make it more difficult to find out about potential fraud when investigations are launched.

The Act creates a list of new offenses, including impersonating the Chief Electoral Officer or someone authorized to act on his or her behalf, which are intended to discourage misleading phone calls to voters. But spelling it out won’t make fraud easier to prosecute, and the minimal fines associated with these new offences ($20,000 on summary conviction and $50,000 on conviction or indictment) are not much of a deterrent.

Likewise for enhanced reporting requirements by private voter calling services, including a requirement to file calling scripts with the Canadian Radio-television and Telecommunications Commission (CRTC). This will not catch clandestine activity, does not require political parties to log calls made to voters by volunteers, and does not apply to U.S. calling firms. As a backstop, the Commissioner of Canada Elections requested the power to ask a judge to compel people to testify during investigations. Several provincial election watchdogs already have this power. The Harper government declined.

When it was first announced, the Fair Elections Act was panned as both ineffectual and, in its reforms to elections financing rules, skewed in the interests of the Conservative Party. A lot of attention focused on the Act’s original ban on vouching for the identity of voters at polling stations. That one reform had the potential to disenfranchise tens of thousands of voters, mostly from communities that don’t vote Conservative. When a Senate pre-study of the Act recommended a series of changes, it provided the cover Minister Poilievre needed to take a small step back on vouching and several other controversial proposals.

Then on April 24, Elections Canada Commissioner Yves Côté handed the government an even bigger gift, claiming he “found no reasonable grounds to believe that an offence under the [Canada Elections] Act had been committed” in the 2011 election. “[B]ased on the evidence gathered,” he said, “it cannot be established that calls were made a) with the intention of preventing or attempting to prevent an elector from voting, or b) for the purpose of inducing an elector by some pretence or contrivance to vote or not vote, or to vote or not vote for a particular candidate.”

Yet this is precisely what a federal court did establish, based on considerable evidence and sworn testimony that is ignored in Côté’s report. In his 2013 ruling, Federal Court Judge Richard Mosley concluded “the threshold to establish that fraud occurred has been met,” and that the fraud was carried out by someone with access to the Conservative Party’s voter database (CIMS). Steven Shrybman, the lawyer who represented several electors in that case who had applied to overturn 2011 election results in their ridings, calls Côté’s report “so fatally flawed as to belie any confidence one might have in its conclusions.”

As a result, says Shrybman, “the most important questions about voter fraud during the last election remain to be answered,” namely, “on how many occasions were lists of non-Conservative Party of Canada supporters downloaded from its database, ‘CIMS’, by whom, and in respect of which electoral districts?” Without being able to determine this now or in the future, he adds, “political parties will remain unaccountable for the misuse of their databases, whether they condone that abuse or simply look the other way.”

The persistent issues with the Fair Elections Act would still be front-page news except that they contradict a tidy media consensus that we have witnessed a rare example of compromise from the Conservatives. In reality, these reforms fail to do what the government says they should while, as B.C.’s chief electoral officer warns, making it “more difficult to vote and, I think, it will effectively drive down the voting turnout numbers.”

Several online petitions and letter-writing campaigns by groups including Avaaz, the Council of Canadians, Democracy Watch and Leadnow hope to convince the Senate to block a piece of cynical legislation that will, if passed into law this month, significantly compromise Canadian democracy.

Stuart Trew is the senior editor of the CCPA Monitor.

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