Federal lawyers argued vouching a 'failsafe' in 2007 legal challenge

A constitutional challenge to voter-identification rules brought in by the Harper government in 2007 may be on its way to the Supreme Court of Canada — where the latest Conservative electoral reforms would create an awkward legal backdrop.

That's because the government of Canada has successfully argued in B.C. courts that its previous round of ID requirements were protected, in part, by the "failsafe" of voter vouching.

Now the Conservatives have introduced sweeping new changes under Bill C-23, dubbed the Fair Elections Act, that would eliminate vouching altogether.

Elections experts say the measure will disenfranchise tens of thousands of voters in 2015.

And constitutional experts say the legislation doesn't pass muster.

'Undoubtedly contravenes' Charter of Rights

Pierre Lortie, chairman of a 1992 royal commission on electoral reform, testified to a House of Commons committee last week that eliminating vouching "undoubtedly contravenes the Canadian Charter of Rights and Freedoms."

And lawyer Brent Olthuis, who represents three B.C. voters who have been battling the previous round of federal identification rules since 2009, is acutely aware of the latest Conservative proposals.

Olthuis makes the link explicitly in his April 1 application to the Supreme Court.

"Regardless of whether that bill (C-23) is ultimately passed, this case offers the Court the opportunity to offer guidance to Parliament -- and for that matter to the provincial legislatures and the wider public debate -- about the constitutional issues engaged by voter ID legislation and how Charter-resistant legislation in this area might be crafted," Olthuis writes in his leave application.

The Supreme Court has not yet decided whether it will hear the case, and federal lawyers have yet to submit their response to the application.

Minister convinced bill is compliant

Pierre Poilievre, the Conservative minister for democratic reform, was asked at a Senate committee last week whether Justice Department lawyers had checked that Bill C-23 was Charter-proof.

"They have considered the legality of it and I am convinced the proposal is constitutionally compliant," Poilievre responded, somewhat ambiguously.

Before the Conservatives brought in voter ID rules in 2007, electors in Canada were not required to show identification when they voted, as long as their names appeared on the voters' list.

Following the 2008 federal election, three B.C. residents -- backed by the B.C. Civil Liberties Association -- challenged the new rules.

Helen Eddlestone of Vancouver, 86 at the time of the vote, walked the four blocks to her polling station but was turned away when she did not have identification on hand showing her address.

Her poor eyesight prevented her from identifying anyone who could vouch for her, and after an hour at the poll she returned home without voting.

Rose Henry and Clyde Wright, both aboriginals who have spent time on the street, managed to vote in 2008 but argued their future qualifications were tenuous at best.

B.C. court found requirements reasonable

The B.C. Supreme Court found that the voter ID rule enacted in 2007 "creates a new condition precedent to voting that did not exist previously."

Moreover, Madame Justice Lynn Smith found that the new rules did breach the Charter, which makes voting a right.

But she ruled the breach was justifiable, a decision upheld in January by the B.C. Court of Appeal.

Vouching, as it turns out, was one of the arguments federal lawyers put forward to prove the bill was "minimally impairing."

"Canada argues that this procedure provides yet greater accessibility and a 'failsafe' measure because it enables those without acceptable identification to cast a ballot if vouched for by another elector who is on the list at the same polling division and who does have acceptable identification," Justice Smith wrote in her trial judgment.

She also dismissed arguments that citizens should be allowed more identification options, such as the voter information cards mailed by Elections Canada, or that people should be allowed to vouch for multiple voters.

'Minimally impairing'

"No doubt the list of documents authorized by the (chief electoral officer) could be further expanded or the vouching provisions could be made more flexible without completely destroying the effectiveness of the scheme," wrote Justice Smith.

"But the question is whether the scheme falls within a range of reasonable alternatives …. I conclude, therefore, that Canada has established that the provisions are minimally impairing."

The trial judge also wrote what seems prescient now in the heat of a pitched parliamentary battle over the Fair Elections Act that has seen various Conservatives, including Poilievre, openly question the motives and integrity of the chief electoral officer and various elections experts.

"I accept Canada's submission that the harm of electoral fraud lies not only in its potential to impact the actual outcome of an election, but also in its capacity to undermine public confidence in the electoral process," wrote Justice Smith.