The Fair Elections Act passes the House

The good, the bad, the strife and the pigeon strut

So how was it for you—this effort at reforming our federal election laws?

Bill C-23, the so-dubbed Fair Elections Act, passed the House of Commons at third reading this evening by a vote of 146-123.

Thirteen weeks after it was first tabled in the House—after a filibuster, a motion of time allocation, a question of privilege related to an MP falsely claiming to have witnessed electoral fraud, a Speaker’s ruling on that false claim, a motion of closure to end debate on that question of privilege and a vote to dismiss the mattera stand-off over parliamentary travel, expressions of concern by the current chief electoral officerthe former chief electoral officerthe commissioner of elections, the chief electoral officers of OntarioBritish Columbia and the Northwest Territoriesthe former chair of the Royal Commission on Electoral Reform and Party Financinga former electoral officer whose report is the basis for some of the government’s concerns, Preston Manningseniors groupsstudent groupsaboriginal groups and dozens (and then hundreds) of academics, dozens of questions in Question Period, 17 House committee meetings, a Senate report, a minister questioning the motivations of the chief electoral officer and a former auditor general worrying that such attacks undermined our institutionsthe government’s decision to accept some amendments, a pigeon strut and an angry dispute over an allegation of finger gunsdozens of proposed amendments, 25 pages of accepted amendments, another motion of time allocation, a point of order about the moving of amendments at report stage, 14 votes at report stage, a point of order about the grouping of amendments at report stage and the defeat of a final reasoned amendment from the NDP calling for the bill to be killed, all after an original draft of the legislation was rejected by the Conservative caucus—the bill is now off to the Senate.

We might now reflect on C-23 and wonder how matters might have unfolded differently.

In an alternate scenario, for instance, the Minister of Democratic Reform consults widely and extensively with the relevant authorities—the chief electoral officer, the elections commissioner, Harry Neufeld, the director of public prosecutions, perhaps electoral officers in other jurisdictions. Instead of having the bill voted on at second reading—at which point the parties must take positions and the parameters of the bill are set by the House—it is sent directly to a committee for study and amendment. Or perhaps a committee—preferably with more independence from party whips than currently exists for House committees—is provided with a white paper from the minister and thus charged with studying the issues and drafting a bill. As a result of any of the above, some of the controversies of the past three months are avoided—an alternative to vouching, for instance, is found before it becomes a point of pitched conflict.

And something like the above is undertaken primarily because the issue is election law.

Professor Paul Thomas, testifying before the Procedure and House Affairs committee, broached this idea.

I start with the observation that there has been considerable decline of public trust and confidence in politics and democracy in Canada. A similar trend has been happening in established democracies. There are many long-term causes and short-term factors that have contributed to public disillusionment with the political process. I fear that both the process by which Bill C-23 was formulated and is being passed in Parliament, and the substance of the bill 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 as consensus as possible contribute in important ways to public trust and confidence in the election process and to democratic legitimacy.

Turning to the process of electoral law, on process I would observe that the Canada Elections Act is not ordinary legislation. It provides a foundation and framework for fair and free elections. Other countries have recognized that such fundamental laws should not be changed hastily and unilaterally by the governing party.

In the U.K., most election law require advanced consultation with the national Electoral Commission. Usually this involves a review of draft bills with the commission officials to ensure that the proposed legislation is workable.

In New Zealand, the Electoral Act 1993 requires a “supermajority” of members of the House of Representatives to repeal or modify a list of eight key features of the election law framework. This provision ensures that there is some measure of cross-party support for those changes. This leads me to recommend that the bill be amended to provide for mandatory consultation with Elections Canada concerning future changes to the Canadian Elections Act.

An amendment to that effect by Elizabeth May was later defeated.

Michael Pinto-Duschinsky, a British scholar, counselled calm when he spoke to the Senate committee studying C-23.

I hope that the discussion can look at the realities because that is how you find technical solutions. If people are impugning the bona fides of others, then you will never come to a common sense, robust answer to questions. I would rather not impugn anyone’s motives but to look for effective ways of controlling things that need to be controlled. Needed now are lines of communication between officials and the parties, with each other, to try to resolve the technical questions to everyone’s satisfaction…

What happened in Britain was that after the tough things in public, the officials and experts from different parties and electoral administrators did get together in private to have cross-party discussion about some of the technical details. I can’t help feeling that with a bill as complex as the one before you, a lot of the divisions that seem to be huge gulfs of principle will be actually quite easily solved with technical discussion..

… the more everybody can be satisfied on both sides of the political aisle that things are technically valid and that they are even-handed, then the better the system will be…

Clearly there is a great advantage for the political system for everybody to try and talk in a technical way and to lower the temperature and to look and see if they can find a technically robust and fair way that satisfies everybody. The more everybody is satisfied, the better the system and the faith of the system will work.

We might ask whether, or to what degree, our political parties are capable of cooperation. Or whether calm conciliation was ever possible here. The New Zealand supermajority option might at least compel some compromise.

With tonight’s vote, the government and official opposition each cheered their own efforts. Speaking to reporters afterwards, Pierre Poilievre said C-23 is a “great bill” and “a step in the right direction for democracy,” while the NDP, which has claimed credit for the government’s compromises, maintains democracy has been mocked and weakened. For what it’s worth, here is the letter James Rajotte has written to those constituents who contacted him with concerns about the bill.

As it is, the last three months might at least stand as a celebration of everything that could be said to be great, bad, entertaining and ridiculous about our parliamentary democracy.

And on that note, let us send the Fair Elections Act off with one last look at Wayne Easter impersonating a pigeon.

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