Why the Conservatives’ “Fair Elections Act” Could Be Unconstitutional

 In 2011, Borys Wrzesnewskyj, the former Liberal Member of Parliament for Etobicoke Centre, lost his seat to Conservative candidate Ted Opitz by a mere 26 votes. Convinced that procedural irregularities on Election Day had robbed him of victory, Wreznewskyj challenged the result in court.[1]

The case reached the Supreme Court of Canada.[2] Wrzesnewskyj lost.

“The right of every citizen to vote, guaranteed by [Section Three] of the Charter, lies at the heart of Canadian democracy,” wrote Mr. Justice Marshall Rothstein and Mr. Justice Michael Moldaver, for a majority of the Court.[3] As a consequence, the Election Day errors that Wresnewskyj claimed had cost him his job were insufficient to invalidate the result: “The procedural safeguards in the [Canada Elections Act] are important,” the Court noted, “however, they should not be treated as ends in themselves.”[4]

In Opitz v. Wrzesnewskyj, the Supreme Court tied its interpretation of the Canada’s elections law to the Charter right to vote. The majority of the Court determined that, if future judges were to insist on perfect compliance with the procedural rules of the Canada Elections Act, then courts would find themselves overturning vote tallies “even when the result of the election reflects the will of the electors who in fact had the right to vote.”[5] Such a “strict procedural approach,” according to the Supreme Court, “places a premium on form over substance, and relegates to the back burner the Charter right to vote and the enfranchising objective of the Act.”[6] Instead, the Court embraced what it called “the substantive approach,” which “focuses on the underlying right to vote, not merely on the procedures used to facilitate and protect that right.”[7]

Ted Opitz is a Conservative MP today because the Supreme Court determined that, under its “substantive approach,” the Election Day “procedures” of the Canada Elections Act are subordinate to the Charter right to vote. Last Tuesday, and partly in response to the Etobicoke Centre controversy, Opitz’s party introduced Bill C-23, which would change those polling procedures. In particular, the so-called “Fair Elections Act” would eliminate “vouching,” which would prevent voters without proper paper identification from casting ballots in future elections.

Vouching—which is permitted by Section 143(3) of the current version of the Canada Elections Act—is the process by which a qualified elector may prove her identity by taking an oath and being vouched for by another qualified elector whose name appears on the voters’ list for the same polling division. If the Conservatives’ proposed “Fair Elections Act” becomes law, then such vouching will no longer be permitted.

Yet, if courts follow the logic that underlies the Supreme Court’s decision in Opitz v. Wrzesnewskyj, then these stricter voter-identification requirements may not survive Charter scrutiny. Without vouching, the provisions of the Canada Elections Act that require voters to show identification in order to vote may be unconstitutional.

The British Columbia Court of Appeal has already found that voter-identification restrictions, on their own, infringe the Charter right to vote. Last month, in Henry v. Canada (Attorney General),[8] Madam Justice Ryan determined that “the rights given under [Section Three] of the Charter are restricted only by citizenship and connection to an electoral district,”[9] and that “any legislation which has the effect of encumbering the explicit words of [Section Three] breaches the right and must be justified under [Section One] of the Charter.”[10] (Section One allows legislatures to place “reasonable limits” on rights provided that those limits “can be demonstrably justified in a free and democratic society.”)

The applicants in Henry were qualified voters—two of them occasionally homeless, one of them elderly and visually impaired—who challenged the constitutionality of the voter-identification restrictions in the current version of the Canada Elections Act. Both the B.C. Supreme Court and the B.C. Court of Appeal found that, though the identification requirements infringed the Charter right to vote, they were nonetheless “demonstrably justified”—and thus constitutional.

The Supreme Court set out the four-part test for justifying an infringement of a Charter right in R. v. Oakes,[11] in 1986:

First, a government action that breaches a Charter right—in this case, the voter-identification rules—must serve a sufficiently important objective[12]—in this case, preventing impersonation at the polls. Second, the infringement must be “rationally connected” to the objective.[13] (As the B.C. Court of Appeal noted in Henry, this second prong of the Oakes test is a “low standard.”[14]) Third, the government action at issue must infringe the Charter right “as little as possible.”[15] Fourth, and finally, the “salutary benefits” of the infringement must “outweigh its deleterious effects.”[16]

Even without vouching, the voter-identification requirements in the Canada Elections Act would almost certainly pass the first two stages of the Oakes test. Few would argue that preventing fraud on Election Day is not a sufficiently important objective, or that imposing stricter voter-identification requirements is not rationally connected to achieving that objective. Where the stricter rules might falter—and where the effect of Bill C-23 may prove to be unconstitutional—is in the final two steps; courts may ultimately find that, without vouching, the voter-identification restrictions do not minimally impair the Charter right to vote, nor do their salutary benefits outweigh their deleterious effects.

In the Henry case in British Columbia, the government was able to pass the third step of the Oakes test largely because, under the current rules, vouching is permitted: “Looking at the scheme as a whole, taking into account the broad range of options available for proof of identity and residence,” wrote Madam Justice Smith of the B.C. Supreme Court, “I am satisfied that there are no alternative, less drastic means of achieving both of Canada’s legislative objectives in a real and substantial manner.”[17]

Last month, in upholding the lower court’s ruling, the B.C. Court of Appeal agreed.[18] But, remember: the “broad range of options available for proof of identity” that the B.C. courts examined in Henry included vouching. Without it, the range of options for proving identity will become considerably less broad. If Parliament prohibits vouching, then the government may no longer be able to establish that the rules minimally impair the Charter right to vote, since vouching will no longer allow voters who lack the required identity documents to cast ballots.

The Supreme Court of Canada used similar reasoning in its Etobicoke Centre decision, in which it linked vouching to the right to vote: “The [Canada Elections Act] seeks to enfranchise all entitled persons, including those without paper documentation, and to encourage them to come forward to vote on election day, regardless of prior enumeration. The system strives to achieve accessibility for all voters, making special provision for those without identification to vote by vouching.”[19] The possibility of vouching for voters without identity documents allowed the Court to assume that “turning a voter away on election day is not fatal to that person’s right to vote. If at first that voter could not comply with a procedural requirement, with some additional effort, he or she can return to the polling station and obtain a ballot.”[20] If Bill C-23 becomes law, this may no longer be the case.

Without an exception to paper identification requirements, in other words, the provisions of the Canada Elections Act that were at issue in Henry might not survive the third step of the Oakes test.

The government may also have difficulty on the fourth step; if Parliament votes to prohibit vouching, then it may become impossible to persuade judges that the salutary benefits of voter-identification rules outweigh their deleterious effects—namely, the disenfranchisement of qualified voters who lack the requisite identification. As the Supreme Court held, in Oakes, an infringement of a charter right cannot be saved by Section One if, “because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.”[21]

Here, the benefits might simply be negligible; courts could find that the elimination of vouching is a solution in search of a problem.

In Henry v. Canada, the B.C. Court of Appeal found that requiring identification at the polls would serve to reduce fraud or error on Election Day. “Moving from an honour system to an identity system will better protect against fraud,” wrote Madam Justice Ryan.[22] The Conservatives argue that the current “identity system” is still insufficient because it permits vouching. “Vouching is not safe; it is not secure,” announced Pierre Poilievre, the minister responsible for democratic reform, last week.

To argue that vouching is “not safe,” the government has relied on a 2013 Elections Canada compliance review which found that, in four recent elections—the 2011 general election, plus by-elections in Victoria, Durham, and Calgary Centre[23]—25 percent of ballots cast using vouching involved “irregularities.”[24] But most of these mistakes were minor procedural errors, of the sort that the Supreme Court found to be inadequate to establish voter fraud in Etobicoke Centre. (Remember that, in the Etobicoke Centre case, the Court agreed with the Conservative candidate’s argument on this very point.)

The government may be hard pressed to argue in court that vouching results in enough voting irregularities to justify the potential disenfranchisement that stricter voter-identification rules would entail. According to the same Elections Canada report that Poilievre proudly cites, just 0.4 percent of ballots cast in the 2011 election had irregularities due to vouching—of which the vast majority were cases of misfiled paperwork, not misidentified voters.[25] As the Supreme Court of Canada acknowledged, in Opitz v. Wrzesnewskyj, excessive identification restrictions may prove both futile and disenfranchising: “Election officials are unable to determine with absolute accuracy who is entitled to vote. Poll clerks do not take fingerprints to establish identity. A voter can establish Canadian citizenship verbally, by oath. The goal of accessibility can only be achieved if we are prepared to accept some degree of uncertainty that all who voted were entitled to do so.”[26]

A court may well find that the government has overstated the Election Day problems that eliminating vouching would intend to solve. If so, then the salutary benefits of the voter-identification requirements may no longer outweigh their deleterious effects. The infringement of the Charter right to vote would then flunk the final step of the Oakes test, and the stricter voter-identification rules would be unconstitutional.

Defenders of Bill C-23 would doubtless claim that the new rules would have limited deleterious effects—that requiring more and more detailed identification will disenfranchise no one. After all, how hard can it be to renew a driver’s license or apply for a passport before Election Day? Yet, evidence from the United States—where conservative legislators have been tightening voter-identification rules for years—indicates that stricter identification requirements do, in fact, keep qualified voters from voting.[27] Elderly, minority, low-income, and homeless citizens are more likely to lack the required identity documents,[28] and so, without vouching, their right to vote may effectively evaporate.

Chief Electoral Officer Marc Mayrand echoed those concerns this week, after the Conservatives introduced Bill C-23 in the House of Commons: “Groups that come to mind are aboriginals, young people, even seniors, who are increasing in terms of population and have increasing difficulty producing proper ID documents.” It should come as no surprise that these disenfranchised voters often tend to support left-of-centre candidates.

If courts find that the disenfranchising effects of stricter voter-identification requirements outweigh the limited benefits of eliminating vouching, then they may be unable to uphold the new rules under the Charter.

None of this will be enough to save vouching in the short term; the Conservatives are pushing to pass the Fair Elections Act before the ink dries. Still, it may only be a matter of time before another voter—like Rose Henry, who made the Charter application that the British Columbia Court of Appeal rejected that week—challenges the legislation’s new, stricter voter-identification requirements in court. Both the B.C. Court of Appeal’s decision in Henry v. Canada and the Supreme Court’s decision in Opitz v. Wrzesnewskyj suggest that this time, without vouching, the voter-identification restrictions may not survive.

Were it not for the purported irregularities in the contest between Opitz and Wrzesnewskyj, the Conservatives might not now be pushing to prohibit vouching. Prime Minister Stephen Harper even hinted at new voter-identification requirements during a photo-op with Opitz hours after the Supreme Court handed down its decision.

But Opitz’s victory may ultimately doom his party’s efforts. In allowing Opitz to keep his seat, the Supreme Court chose to follow the Charter more closely than it insisted on the procedural requirements of the Canada Elections Act. That decision could come to stand for a powerful proposition: that no Parliament—and no Conservative majority—may change the rules to stand between Canadian citizens and our right to vote.