Objections to vouching

The Conservative Government might be facing Charter challenges to its new election legislation, as it eyes axing provisions that allow voters to vote without proper identification.

The Fair Elections Act, or C-23, was tabled earlier this month and has faced some derision because of the provisions that would eliminate vouching as an alternate method of voting.

Vouching is the process through which a voter who is on the electoral ridings at a poll can vouch for the identity and residency of another voter. Roughly 120,000 Canadians used that method of voting in the 2011 election.

But Ottawa has cited vouching as a system plagued with abuse. They've insisted that if Canadians want to vote, they can bring the proper proof of identity and address.

Critics, including the two main opposition parties in Parliament, say the move could disenfranchise thousands. Former Liberal speechwriter and Kirby Human Rights Fellow at Yale Law School, Adam Goldenberg, wrote in Slaw legal magazine that any disenfranchisement could take this law to the Supreme Court, unless it gets amended before receiving royal assent.

Two decisions, from the Supreme Courts of Canada and British Columbia, give some direction on how the courts might consider closing the door on letting voters cast their ballots without valid ID.

Opitz v. Wrzesnewskyj came about after the 2011 election. Conservative challenger Ted Opitz narrowly edged out Liberal incumbent Borys Wrzesnewskyj by a mere 26 votes. Wrzesnewskyj contested the results on the basis that he believed electoral funny business was being conducted with the vouching process. The Ontario Superior Court examined the results of a handful of polling locations and discovered 79 votes that lacked the required certificates that had to be signed if a vouching is used to allow a voter to cast a ballot. They cited those votes as "irregularities" and overturned the results of the vote altogether, ordering a byelection.

Opitz appealed, and a 4-3 split decision from the Supreme Court of Canada in October 2012 ruled that the lower court was too hasty in overturning the result.

Justices Marshall Rothstein and Michael Moldaver, for the majority, wrote that "we are asked to disqualify the votes of several Canadian citizens based on administrative mistakes, notwithstanding evidence that those citizens were in fact entitled to vote.  We decline the invitation to do so."

While, in their decision, the justices largely contemplate at which level to set the threshold for overturning the results of an election, they also consider the weight of a vote, and when it can be considered illegitimate.

"The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves.  Rather, they should be treated as a means of ensuring that only those who have the right to vote may do so.  It is that end that must always be kept in sight," Rothstein and Moldaver write.

The majority pitted the two common trains of thought on s. 3 of The Canadian Charter of Rights and Freedoms —which guarantees the right to vote — against each other, whether the courts should take a substantive approach, and acknowledge that the right to vote can supersede administrative hurdles, or whether the procedural approach should win out, and that votes that do not meet the regulations under the act should be deemed invalid, if challenged.

The two continue, effectively endorsing the substantive approach: "As we have discussed, the 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."

Despite that, the justices also conclude that "unlike the rejection of a valid vote, turning away a voter 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."

For the minority, Chief Justice Beverley McLachlin, countered that her “colleagues, with respect, merge the concepts of qualification and entitlement.  They take the position that everyone who is qualified to vote and ordinarily resident in the electoral district is entitled to vote...I cannot accept this view."

The duelling views — that the right to vote trumps administrative hurdles, and that enfranchisement can be only for those who can meet the test of their eligibility — making it anyone's guess as to how the top court might consider the elimination of vouching.

The Supreme Court of British Columbia had to consider a similar case in 2010, in Henry v. Canada, where several voters challenged the premise of the voter ID rules as being unconstitutional. They alleged that they, like many other Canadians, lacked the proper identification required in the act and were unfairly disenfranchised.

The court agreed that their right to vote under s. 3 of the Charter was violated, but found it to be a justifiable limitation under s.1. An appeal was dismissed earlier this month.

Canada's arguments during the case rested on the idea that the vouching eliminated, or at least minimized, the disenfranchisement and, thus, made the laws constitutional.

"Canada argues that [vouching] provides yet greater accessibility and a 'failsafe' measure because it enables those without acceptable identification to cast a ballot," wrote Justice Lynn Smith.

Taken together, the two cases lay out an interesting challenge for any meditations on the constitutionality of vouching.

National reached out to counsel for both Opitz and Wrzesnewskyj to get their thoughts on the matter.

Stephen Thiele, a partner at Gardiner Roberts who was co-counsel for Wrzesnewskyj, figures vouching will certainly face a Charter challenge. How it will fare, he says, is another issue.

"Eliminating it, I think, is probably a good option,” he says. “There's no doubt that it will raise some arguments about whether the complete prohibition on vouching will stand up for charter scrutiny. I'm not sure about that, but the evidence will certainly come out in the case.”

The evidentiary burden on the government, he adds, will be to prove that vouching itself is rife with abuse and problems. That evidence, however, might not necessarily bear out this government's case. Following the Opitz case, Elections Canada commissioned an audit to investigate just how many problems that vouching causes. What they found was that, while irregularities in an estimated 42% of cases where vouching was used, almost all were administrative in nature — situations where documentation prepared by elections officials was not sufficient. It's unclear if that will justify striking the provision down itself.

But challengers to the law will have their work cut out for them too, says Thiele.

"Whoever brings the challenge is going to have to be able to demonstrate that they don't qualify under any of the alternative identification requirements and, at that point, it will really be a contest of whether there is sufficient evidence to say that, in the interest of protecting the integrity of the system and preventing fraud from taking place, that eliminating vouching...is justifiable under Section One of the Charter."

As to how the Supreme Court may rule, when or if the question ever gets that far?

Thomas Barlow is a partner at Fasken Martineau in Toronto, and served as counsel for Opitz. He's not sure that the Opitz case will offer much guidance one way or the other to any judge considering the act.

What the Opitz case does do, he says, is acknowledge that there is a balance between various rights that comprise the right to vote — amongst them, the rights to accessibility and legitimacy. Any hypothetical match-up before the courts will be a tug-of-war between those two principles.

On one hand, Barlow notes, the entire Opitz case was predicated on "certain alleged irregularities relating to vouching that would not arise as a basis for disenfranchising voters or contesting elections if vouching is eliminated."

On the other, the top court recognized in Henry limitations to the accessibility of voting had to be reasonable under s. 1.

"In fairness, the Opitz decision did not expressly decide a challenge to the constitutional validity of voter identification requirements - with or without the changes proposed in The Fair Elections Act," Barlow wrote in an email. "This will have to be decided if and when that question comes before the Court in its context, including potentially the extent of acceptable identification and the concerns about voter fraud and other issues relating to vouching that have been referenced by the Minister in introducing the new legislation."

And the Minister of State for Democratic Reform Pierre Poilievre has been quite pronounced on the issue. He's maintained that the audit, produced as a result of the Opitz case, proves that the use of vouching is broken and that it has enfranchised illegitimate voters.

In the end, Parliament's ability to tackle that issue might be paramount, says Barlow. "The fact that the [Supreme Court] in Opitz favoured a substantive approach to interpreting and applying rules under [The Elections Act] does not mean Parliament is not entitled and obligated to make the rules, which strike what the Court refers to as 'a balance between interrelated and sometimes conflicting values,'" he says,

The bill is currently before committee, after being rushed through the House of Commons by the government. The committee expects to be done considering the bill by May.