In January 2008, while working as an advisor to the Assembly of Kosovo, I wrote an article called ‘Imposing Legitimacy: The Dilemma of International Democratic Development’ for LawNow magazine. In it, I raised the question of how democratic institutions become legitimate in the eyes of a population.

Now, I’m asking a different question: How do democratic institutions lose their legitimacy?

Basically, I argued there are five prerequisites for democratic legitimacy:

A legal or constitutional basis for authority;

Enforcement mechanisms;

Impartial decision-makers (financial independence, security of tenure);

Transparency in decision-making;

Mechanisms for giving or withholding consent.

Bill C-23, the so-called Fair Elections Act, risks undermining each of these prerequisites for democratic legitimacy. It risks stripping Elections Canada of its democratic legitimacy and endangering the future of free and fair elections in Canada.

The legal basis for elections in Canada is the Canada Elections Act. Changes to this law must be taken very seriously and be based on the widest possible public and expert consultation. When I was director of parliamentary affairs for the minister of Democratic Reform in the Paul Martin government, we took this so seriously that we asked a parliamentary committee to initiate legislation on the Elections Act. While the committee did not actually do so, the request itself shows that the Elections Act is no ordinary piece of legislation.

The Conservative government is ramming Bill C-23 through Parliament with little public consultation. When Chief Electoral Officer Marc Mayrand testified that this bill would deny some Canadians the right to vote, the Conservatives interrupted his testimony several times. Over 150 Canadian university professors have written an open letter criticizing the Bill, as have thousands of citizens. But none of this is being taken into consideration in reviewing the bill.

The last time I worked in a country where a government used its majority in Parliament to ram through changes to an election law without public input was in the Democratic Republic of Congo in 2011. I never would have expected this in Canada.

Many countries have excellent laws in place but lack enforcement mechanisms. Canada used to have one of the world’s strongest election financing laws. But under Bill C-23, Elections Canada will no longer be allowed to investigate breaches of the Elections Act, will not be able to compel witness testimony, and cannot ask political parties to submit their receipts to prove their expense claims.

The bill also puts in place exemptions that would allow parties to spend more during elections (by classifying it as communicating with donors). Not only will Bill C-23 weaken Canada’s electoral financing laws, but the laws we have simply won’t be enforceable anymore.

One of my responsibilities in Kosovo was to work with the Legislative Assembly to pass a law that would make independent institutions (like our Officers of Parliament) accountable to Parliament and not to the government. This is no mere formality — it affects everything a parliament does.

I worked with the Independent Oversight Board, which was charged with counteracting nepotism in the public service. Their office was in the ministry building, the board members were appointed by the minister and their funding depended on the ministry. Each time they ruled against the ministry, they suddenly saw their access to essential supplies — like photocopy paper — dry up.

Under Bill C-23, the enforcement arm of Elections Canada (Commissioner of Canada Elections) will be moved to the Office of the Director of Public Prosecutions, who is appointed by the government and reports only indirectly to Parliament through the government. I brought a delegation to Canada from Kosovo in 2007 on a study visit to learn how Canadian institutions maintain their independence from government. Today, I would be embarrassed to bring them to Canada.

One of the more egregious aspects of Bill C-23 is that it actually forbids Elections Canada or the Chief Electoral Officer from communicating with the public. No more reports. No more voter education. No more communication about robocalls or any other investigations.

In every international best-practice regarding democracy, transparency is the number one criteria. It is hard to imagine how a country can maintain elections transparency when the body that runs elections is no longer allowed to speak to the people. Even former auditor general Sheila Fraser has criticized this aspect of the bill, saying: “Independent officers of Parliament — the government is now restricting what they can say? It’s just so inappropriate.”

I can honestly say that in all my years of working on democratic development with the United Nations, OSCE, NDI and other international organizations on five continents, I have not found another electoral commission that was prohibited by law from speaking to the public about elections or doing public awareness campaigns to encourage people to vote.

An election is mechanism through which a people can give or withhold consent to be governed. It is the ultimate form of accountability. Without free and fair elections, there is no democracy.

Not only does Bill C-23 undermine the legitimacy of Canadian elections, it also has the potential to disfranchise hundreds of thousands of Canadian citizens. This is taking voter suppression to a whole new level. At a time when voter turnout in elections is going down, making it harder to vote can only be motivated by partisan interests — not by any public good.

Once, Canada led the world on open elections and transparent institutions. Canadians need to speak out now before we lose our voice forever.

Anita Vandenbeld worked for a number of years internationally on democratic development with the United Nations Development Programme, the National Democratic Institute,the Organization for Security and Cooperation in Europe and the Parliamentary Centre. She was also director of parliamentary affairs for the first minister of Democratic Reform, Jacques Saada. She is seeking the Liberal nomination in Ottawa West-Nepean.

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