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Federal Government’s Election Reforms Fall Short

Rob De Luca
Director of Democracy and the Rule of Law Program
rdeluca@ccla.org

 

 

 

 

Yesterday, the government passed sweeping new legislation that will govern the 2019 federal election. Many of the changes are necessary and will go significant lengths to increasing engagement in the Canadian electorate. The legislation reduces barriers to voting in numerous ways, including by reinstating vouching as a way for voters to identify themselves at the polls, by allowing for the use of voter information cards, and by facilitating young adult voter registration. It also undoes what CCLA has argued are unconstitutional restrictions on the right to vote by Canadian citizens who are residing abroad, restrictions we recently fought at the Supreme Court.  

Despite these changes, the new legislation fails to address a much discussed problem in Canada’s election laws, namely their failure to provide oversight with respect to the collection, use and disclosure of Canadians’ personal information by our political parties. Instead, the legislation only requires that political parties publish their privacy policies, while leaving application of these policies to these same parties.

“Trust us” is not a solution for safeguarding Canadians’ personal information. We argued for real and independent oversight before Parliament and no less than the Chief Electoral Officer and the Privacy Commissioner have argued the same, but the new election legislation nevertheless fails to address this well-known problem.  

The legislation is party-centric in other troubling ways. Most notably, it includes and carries forward significant restrictions and registration requirements with respect to political advocacy by individuals and organizations.

For instance, during an election period, “third parties” (individuals or groups who are not a political candidate, registered political party, or otherwise an electoral competitor) are limited to spending approximately $4,000 in an electoral district on partisan or issue advertising, i.e., advertising on a position on an issue with which a registered political party or candidate is associated. Third parties are also subject to registration requirements under the Act if they spend $500 on “electoral advertising,” a vague concept that includes both partisan advocacy and issue advertising.  

The government can and should take measures to ensure that our political discourse is not dominated by the wealthy few. But these kinds of restrictions on expression have the unfortunate effect of ensuring that our political discourse is instead dominated by well-organized and well-financed political parties. That’s because complex and opaque election rules, and particularly complex and opaque rules that capture the most minor of spenders, discourages civic participation by groups and individuals who have concerns that they might somehow violate some unknown or misunderstood election law.

For instance, the legislation requires individuals and groups to know, often in advance, whether advocacy on issues is regulated political speech. Is an ad campaign on labour rights or climate change an issue “associated with a candidate or a party,” and thereby subject to the legislation’s spending limits and registration requirements? Such questions are often vexed, with the answer depending on when, where, or how you ask the question. Better to stay silent than to risk running afoul of election laws.

Take groups who wish to campaign for or against the TransCanada pipeline. While such issue advocates might not share the same view on the pipeline as their preferred political party, their issue advocacy may well be considered electoral advertising given recent government actions on the pipeline and its likely prominence in election debates. And it is those without deep pockets and sophisticated legal counsel who might legitimately fear getting too close to any such limits.

The legislation’s spending limits on “third parties” pose additional hurdles to effective political expression. The monetary limits on expression make many kinds of meaningful issue-based campaigns, such as campaigns involving expensive placements in our national media, impossible. Indeed, some issue-based advocates who persistently advocate on issues outside of election periodssuch as the TransCanada pipelinemight feel the need to suspend their campaigns during election periods out of fear that the issue can be construed as too closely aligned to a particular party. The predictable effect is that during what should be a time of heightened political discourse and heightened political engagement in Canada, namely a federal election, many “third parties”individual Canadian citizens, civil society groups, community organizers, and the likewill feel compelled to stay on the sidelines.

Talk Rights

Voting in Canada: The First Past the Post System

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

As Canadians, the importance of our democratic right to vote is upheld under section 3 of the Canadian Charter of Rights and Freedoms.

Democratic rights of citizens

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Those of us who chose to exercise this right during our Federal elections show up to voting stations in the hopes of influencing the outcome of the election. As citizens in a democracy, we understand that elections are a matter of counting the votes, and the person with the most votes wins. However, many people do not understand what type of electoral system they are participating in. Canada has a “First-Past-the-Post” (FPTP) voting system, which is common amongst common-wealth countries and other parliamentary democracy systems.

How FPTP works

Canada is divided into 338 different electoral ridings (previously 308), and each electoral riding has a ‘seat’ in Parliament. The Member of Parliament (MP) elected to each seat in Parliament is meant to represent that electoral riding’s interests. During election time 338 elections are held simultaneously, and each eligible voter in their electoral riding can vote for their MP. The winning candidate only needs to receive the most votes out of any candidate, known as a simple majority or a plurality, rather than half of the votes, know as an absolute majority. The winner in that election will become the MP for that electoral riding, which is commonly referred to as assuming a ‘seat’ in Parliament. After taking their seat in Parliament, each MP has an equal vote on any legislation that comes before Parliament.

As most of us know, each MP is part of a federal political party. Government is formed by the party that achieves at least a simple majority of the seats in Parliament, commonly referred to as a ‘minority government.’ Just as in electoral ridings, this doesn’t need to be an absolute majority. For example, in the last election the Liberal Party of Canada won a majority of seats in the government with 184 seats out of 338, but in 2008 the Conservative Part of Canada won with a simple majority and assumed a minority government with 124 seats out of 308.

What are some of the positive outcomes of this system?

The FPTP works by protecting the balance between regional interests and the shared interests of people from different parts of Canada. Those who share interest in what they want the role of the Federal Government to play in a broad sense are represented by the political parties which they support. Since confederation, Canada has a history of also wanting to protect regional interests. The differences between what people from rural Newfoundland want out of the Federal Government are sometimes far removed from the interests from people in downtown Vancouver. By voting for MPs for each electoral riding we have the benefit of being able to have all regional interests represented in Parliament.

What are some of the short comings of this system?

Under the section 15 of the Charter each citizen is given equal treatment and benefit under the law, so we would assume that every vote should count and has equal influence on the outcome of the election. However, in the Canadian FPTP system some regions have more representation in Parliament than others, due to how electoral ridings are divided. Ridings with lower total voting populations have the effect of making each vote count for more. Each voter has a greater influence on the outcome of the election in that riding compared to voters who lives in a larger population riding. Under section 51A of the Constitution Act of 1867, provinces are entitled to as many MPs as they have members of the Senate. For example, PEI is guaranteed 4 members of the Senate under section 24 of the Constitution Act of 1867, so they are entitled to have at least 4 MPs. In PEI each riding has about 28,000 eligible voters, whereas ridings elsewhere may have nearly 90,000 eligible voters. Because each MP is meant to represent the interests of that riding, and each MP has equal voting power, this means that some voters in Canada have triple the per capita representation of their interests in Parliament.

Another perceivable problem is that mainstream political parties are over-represented in Parliament because alternative parties aren’t viewed as viable options. For example, for the Green Party of Canada to elect Elizabeth May as their first MP in 2011, they needed a high concentration of individuals in one riding (Saanich, British Columbia) to share similar interest in voting for their candidate. In that election they achieved 1 out of the 308 seats in Parliament, while 3.8% of the total voting population across Canada voted for Green Party candidates. This creates a disincentive to voters to vote for their most preferred party or candidate for government, and encourages strategic voting. Voters, being rational decision makers, sometimes don’t wish to ‘waste’ their vote by choosing their local candidate for their preferred party because they fear that party is unlikely to find popular support in their riding, so instead they chose to vote for a candidate from a party that is more likely to be elected.

Voting alternatives

The Liberal Government is currently investigating the viability of alternative voting systems in Canada. Understanding how our system operates is crucial as we question if and how Canada will change how we vote. However, alternatives to this electoral system like the single transferable vote system (STV) and the mixed member proportional system (MMP) have their own benefits and drawbacks. Here, some of the benefits and drawbacks of our FPTP system have been discussed, and some of the following links can be used to compare the benefits and drawbacks of the alternative systems.

 

Useful links

http://www.cbc.ca/news/politics/the-pros-and-cons-of-canada-s-first-past-the-post-electoral-system-1.3116754

http://www.cbc.ca/news2/interactives/results-2015/

http://laws-lois.justice.gc.ca/eng/Const/page-15.html

https://www.sfu.ca/~aheard/elections/1867-present.html

http://votingreform.ca/

http://www.samaracanada.com/samara-in-the-classroom/electoral-reform/single-transferable-vote

https://engage.gov.bc.ca/howwevote/single-transferable-vote/

http://www.samaracanada.com/samara-in-the-classroom/electoral-reform/mixed-member-proportional-representation/

News and Analysis

INCLO Report Release: Gaining Ground: A Framework for Developing…

In many countries across the world, governments have stepped up attacks on Non-Governmental Organisations (NGOs), making it harder for them to function effectively. A global pattern has emerged, in which certain governments seek to stigmatise and delegitimise these organisations, particularly by demonising their acceptance of foreign funding or other foreign connections they might have. Moreover, governments often impose debilitating regulations, limiting NGOs activities or simply shutting them down. These measures are often cloaked by the authorities as efforts to curb money laundering, corruption or terrorism.

Such state tactics are not new and include public vilification, hostile legislation, arbitrary enforcement, surveillance, arrest and intimidation. But the speed and scale of this latest spreading wave of repression has been astonishing, fuelled by geopolitical trends and national political shifts that are weakening international human rights protection and support.

NGOs are essential for mobilising private initiative, facilitating citizen engagement and protecting people’s rights. To anticipate and prepare for potential threats, they need to closely observe the signs of a sector-wide assault on civic freedoms.

In recent years, many members of the International Network of Civil Liberties Organizations (INCLO) have had to respond to a sudden increase in threats to civic freedoms. In support of these and other NGOs who have experienced similar treatment from authorities, today, INCLO is releasing the report Gaining Ground: A Framework for Developing Strategies and Tactics in Response to Governmental Attacks on NGOs.

To inspire international solidarity and enhance cross-border exchange between different organizations, Gaining Ground provides resources and analysis designed to support national organizations who wish to formulate strategic tactics to counteract governmental threats and assaults. It identifies five strategic questions, related to specific threats observed around the world, and enumerates possible responses, evaluating their pros and cons while addressing the possible considerations determined by the context in which the organizations operate. Moreover, the publication shares relevant case studies that INCLO collected from NGOs around the world.

While the approaches adopted by other NGOs would need to resonate within the national context, INCLO’s report seeks to provide a framework of strategic proposals that can be used as a starting point to address NGO vulnerabilities.

INCLO is a network of 13 independent, national human rights organizations working to promote fundamental rights and freedoms. The INCLO members are: the American Civil Liberties Union (ACLU), the Association for Civil Rights in Israel (ACRI), the Canadian Civil Liberties Association (CCLA), Centro de Estudios Legales y Sociales (CELS) in Argentina, Dejusticia in Colombia, the Egyptian Initiative for Personal Rights (EIPR), the Hungarian Civil Liberties Union (HCLU), the Human Rights Law Network (HRLN) in India, the International Human Rights Group Agora (Agora) in Russia,  the Irish Council for Civil Liberties (ICCL), the Kenya Human Rights Commission (KHRC), the Legal Resources Centre (LRC) in South Africa, and Liberty in the United Kingdom.

Gaining Ground is currently available here in English.

For more information, contact Andreea Anca at aanca@inclo.net