Student group loses court challenge against Fair Elections Act

Canadian Federation of Students says act will disenfranchise students in federal election

Photo by Carolyne Kroeker.

The Canadian Federation of Students (CFS) lost a court challenge late last month that attempted to have the Fair Elections Act ruled unconstitutional in advance of the federal election – leaving many to wonder whether thousands of Canadian students will be disenfranchised by the legislation.

The Ontario Superior Court defeated the injunction, which was requested by the CFS and the Council of Canadians in order to ensure that the bill’s provisions would not apply to the federal election campaign now underway.

When Judge David G. Stinson declined their injunction, the group launched an appeal, which was also denied.

The full Charter challenge of the legislation, which is separate from the attempted injunction to temporarily suspend the act for constitutional reasons, will not be heard until after the federal election.

Bill C-23, commonly referred to as the Fair Elections Act, was approved by Parliament in the midst of controversy.

The bill, which became law in June 2014, toughens voter identification requirements, limits the ability of Elections Canada to communicate with the public, cracks down on robocalls, increases penalties for certain election offences, and adds an advanced voting day.

When it was originally tabled in the spring of 2014, the bill  received negative backlash from the Opposition and various experts who claimed it would damage Canadian democracy by limiting Canadians’ constitutional right to vote.

After weeks of heightened criticism, Pierre Poilievre the minister of state for democratic reform, announced significant amendments to the act that watered down many of its more controversial provisions.

Among those opposed to the act were CFS and the Council of Canadians, both claiming that the bill damages democracy and encourages voter suppression by the Canadian government.

The two groups jointly filed the injunction along with three individuals who testified against the act based on their own experiences, attempting to demonstrate that these new provisions would inhibit potential voters.


CFS stance

Bilan Arte, the national chairperson for CFS, told the Manitoban that CFS opposes the more stringent voter identification requirements, which she said will disenfranchise students and other voters who may have difficulty providing proof of address.

Under the Fair Elections Act, voters are required to produce identification with their name and current address. According to many experts, proof of address is difficult for people who do not live at a fixed address or who have recently moved.

While voters can have someone else vouch for them, the process has become more onerous under the act. Moreover, the act phases out the use of voter information cards as valid identification at Canadian polling stations.

“We found it very troubling that the federal government, rather than trying to enable those voters to feel like they should be a part of the democratic system, were finding ways to make it more difficult for them to participate,” said Arte.

Arte said people without fixed addresses – those who are homeless, living in student residences, in group housing, or in shared living situations – will be the hardest hit.

Arte also cited concerns with how the bill restricts Elections Canada from doing voter information outreach to students on university campuses to ensure that young people, specifically those in marginalized groups, exercise their right to vote.

Dylan Penner, democracy campaigner for the Council of Canadians, said that a successful court injunction would have restored voter information cards as valid identification in the upcoming federal election.

It is estimated that 400,000 registered voters relied on voter information cards in the 2011 federal election. However, because it was a pilot project, it is uncertain how many voters actually needed the cards to prove their identity and, more importantly, their address.


Expert weighs in

Paul Thomas, member of the Elections Canada Advisory Board and professor emeritus in the  department of political studies at the University of Manitoba, testified on Bill C-23 before both the House of Commons and the Senate committee that examined the bill as it was being reviewed by Parliament last year.

Thomas cited concerns that there might be lineups and delays on Oct. 19, despite measures that have been taken to inform voters about new identification requirements and more extensive training for election officials.

“Many of the experts agree that the new identification rules will disproportionately affect voting by students, First Nations people, especially those living on reserves, and senior citizens living in long-term care facilities,” Thomas said in an email.

Although Elections Canada has launched some administrative and procedural initiatives to reduce the potential that disengaged groups will be prevented or discouraged from voting, the Fair Elections Act prohibits Elections Canada from advertising get out the vote initiatives, according to Thomas.

“With generally declining voter turnouts in national elections we need to think of new ways to motivate more people to vote, particularly among segments of the population who are disengaged from the political process, like students,” Thomas said.

Thomas said that the fundamental problem arises from the insistence that voters without a valid driver’s license or other government identification card with their current address must produce two documents, including one that contains a current address.

“The Conservative government claims that 39 or more documents can be used but voters have to present two official documents, one of which includes an address. Not everyone will arrive at the polling station with the required documents,” said Thomas.

“Attest voting is supposedly the safety device that will allow people to vote without an identification that includes an address.”

This process, which replaces the former vouching system, allows a second person – who has the mandatory documentation and lives in the same polling district as the person without identification – to take an oath vouching for the other elector.

Thomas said that this could be difficult in practice, and those who are not inclined to vote may simply walk away from the polling station.

These more restrictive election rules were based on claims that voter impersonation, or other forms of voter fraud, had happened or would happen in the future.

However, no sound empirical evidence of such fraud or explanation for these claims has been presented, Thomas said, and some Conservative members of Parliament eventually retracted claims that they had witnessed actual voter fraud.