Category Archives: Voting

6 Judicial Recounts, No Change in MPs

6 judicial recounts following the federal election have resulted in slightly different vote totals, but no changes in who was elected.

The judicial recount in Regina–Lewvan was terminated after the request for a recount was withdrawn.

Here are the changes in the plurality of votes in the other five recounts:

  • Barrie–Springwater–Oro-Medonte – from 108 to 86 votes
  • Hochelaga – from 541 to 500 votes
  • Desnethé–Missinippi–Rivière Churchill – from 71 to 82 votes
  • Montmagny–L’Islet–Kamouraska–Rivière-du-Loup – from 269 to 272 votes
  • Edmonton Mill Woods – from 79 to 92 votes

There’s a Laundry List of Problems with Canadian Elections, but Advanced Voting Isn’t One of Them

On the Globe and Mail website today Lysiane Gagnon wrote an opinion piece setting out with painful simplicity the antiquated, self-promoting and sanctimonious arguments of those such as herself who are against advanced voting. For those still interested, you can read it here:

The main thrust of her opinion is that people who vote in advanced polls are less informed than those who vote on polling day. She leaps to this conclusion by citing some hypothetical situations, and then some actual “dramatic events” from the 2015 campaign that were in reality some of the most uninteresting, stereotypical and predicable bits of news that anyone could have possibly concocted to happen to the Liberals and NDP.

The most offensive part of this opinion is the moralizing about how voting on polling day is superior to voting in an advance poll. People who vote at advance polls (myself included) are not trivializing the vote. On the contrary, I would challenge Ms. Gagnon that people who vote in advanced polls are likely to be more informed than those who wait until polling day. People who make their minds up a week before polling day probably have been paying attention to what the parties and their leaders have been saying and doing over the many weeks and months of official and unofficial campaigning. They are probably more in tune to the substance and detail of the record of what the parties and their leaders have done, and less focused on the desperate promises and polished sound bites that fill up the last week of our system of seemingly endless campaigning.

With all the problems facing Canadian democracy (minimal choice on the ballot, huge distortions from the principles of representation by population and proportionality, near complete dominance by party elites), it is nonsensical to blame voters for trivializing democracy in our country. Looking at the big picture of Canadian democracy and what needs to be fixed, its Ms. Gagnon’s opinion on this subject that I find particularly trivial.

Ms. Gagnon suggests moving advance voting to the weekend immediately preceding polling day. To which I say, why not try having advance voting available for both? That may be trivializing in her opinion, but if it gets more people out to vote, it seems like a good investment to me.

Do Early Election Results Influence BC Voters?

The CBC and the Globe and Mail both reported on the fact that networks had already declared a Liberal majority while polls were still open in the Pacific time zone.

In previous elections is was illegal to report election results before the polls had closed, in an effort to avoid this exact scenario. However, with the growth of social media it became impractical to try and enforce a provision that allows results to be reported in some time zones but not others, and the law was repealed before the 2015 election.

is it fair that election results can be reported while the polls are still open in most of British Columbia? The news reports touch on the relevant issues: some people still in line may not vote; it may cause a last minute rush to vote; and either way, it provides some BC voters with information that is not available to the rest of the country.

Practically speaking, the vast majority of voters have already cast their ballots without waiting until the last hour. With all the advanced voting opportunities available, I continue to be amazed at the number of people who wait until polling day to cast a ballot, especially those who wait until the final few hours. Given all the opportunities they have to cast a ballot before the election results start to be reported, maybe they have less of a valid complaint about it.

I find it hard to believe that there are many people who are waiting to see the early results before voting, or who would make a decision whether to vote or not depending on these results. Perhaps if people are stuck in a long line and know that the result is already determined there may be a temptation to give up, but if that is an issue surely the solution lies in more staff at polling stations in the west as opposed to re-enacting a ban on publishing the results.

What do you think about this? Is it a legitimate issue or just a tempest in a teapot by a few cranky British Columbians?

Was John Oliver’s “Last Week Tonight” Segment Illegal?

Several Canadian news outlets reported on the legality of John Oliver’s “Last Week Tonight” segment on HBO last week:

Globe and Mail:

Winnipeg Free Press:

Toronto Star:

These stories focused on section 331 of the Election Act (Canada), which prohibits persons who do not reside in Canada and who are not citizens or permanent residents from inducing electors to vote or not. The articles cite an Elections Canada spokesperson who notes that sharing an opinion is not considered an inducement, as there is no tangible thing that is being offered. I don’t think that inducements are limited to tangible things, but I agree that the sharing of opinions is not an inducement.

Interestingly, I haven’t seen any analysis of whether Mr. Oliver contravened section 330 of the Act, dealing with the use of a broadcasting station outside Canada. Unlike section 331 which serves a valuable purpose, a prohibition on using broadcasting stations outside Canada to influence (not induce) people to vote or not seems to me as an outdated provision that would be pointless to try to enforce.

I would be interested to see if anyone has looked at whether the segment did contravene section 330 though, just to see whether anyone else thinks it still has a purpose.

2015 Federal Election Preliminary Results

The preliminary results of yesterday’s federal election are available on Elections Canada’s website here:

The preliminary results show a voter turnout of 68.49%, excluding a few polls and those electors who registered on polling day.

That is a significant increase from the just over 61% of eligible voters who cast a ballot in 2011, but still barely over 2/3rds of eligible voters.

More background information about the voter turnout is available in this story on the CBC website this morning:

Is a Marijuana Dispensary’s Voting Incentive an Illegal Bribe?

There is an article on the CBC website today about an effort by a Vancouver marijuana dispensary to encourage people to vote:

The CBC reports that in an effort to provide an incentive for people to vote, the Eden Medicinal Society is offering two prizes:

  • Society members who can prove they voted on election day can enter to win the chance to be a judge at a cannabis competition; and
  • Non-members who prove they voted are eligible to win a ticket to the event.

While efforts to encourage people to vote are to be commended, there is a high risk that offering of incentives such as this will contravene the Elections Act (Canada). If they are in contravention of the Election Act, there may be legal consequences for both the Eden Medicinal Society, and anyone who takes up their offer.

Section 481(1) of the Election Act makes it an offence to offer a bribe during an election period to induce an elector to vote (or refrain from voting). Accepting such a bribe is an offence under section 481(2).

The voting incentive described in the article offers electors with some valuable consideration (an entry in a contest to win a prize) in an effort to get them to vote. They are saying that if you vote, we will give you an entry into a contest.

In my view this is a clear contravention of section 481(1). I do not think it matters that all they are offering is a chance to win a prize, as opposed to a prize. There is still an offer of valuable consideration being made to encourage people to vote.

I should note that I am implying from the article that the contest is only open to those who vote. If the contest was open to everyone, regardless of whether or not they voted, my views would be different.

I believe voting should be encouraged, but there is a good (and, I trust, self-evident) reason that the Election Act prohibits bribes (or more subtly, “incentives”).

If the Eden Medicinal Society wants to encourage people to vote, it can (and should) do so without this incentive plan, well-intentioned as it may be.

“Perry Bellegarde says he will vote in federal election after all”

From the CBC website, a story about whether Assembly of First Nations National Chief Perry Bellegarde will vote in the upcoming federal election:

Bellegarde had previously said that he would not vote in order to remain “non-partisan”.

Being non-partisan doesn’t mean that you can’t vote. It just means that you don’t publicly support or oppose a particular political party or candidate.

People come up with all sorts of justifications and excuses for why they don’t vote, but saying that you don’t vote because you are non-partisan doesn’t make sense.

So kudos to Mr. Bellegarde for announcing that he will be voting. As a community leader he should encourage people to take part in the democratic process. That doesn’t mean he has to encourage people to become partisans, but at least he should encourage people to vote.

What’s the Penalty for a Ballot Selfie?

News coverage on “ballot selfies” has increased awareness that the practice is illegal, but what are the penalties if you are caught?

The law against ballot selfies is in section 164(2) of the Election Act: Except as provided by this Act, no elector shall show his or her ballot, when marked, so as to allow the name of the candidate for whom the elector has voted to be known.

If you take a photo of your marked ballot and post it on the internet, prepare to pay up to $5000 and spend 6 months in jail.

Here is the law:

Section 489(2)(b) – Every person is guilty of an offence who being an elector, contravenes subsection 164(2).

Section 500(2) – every person who is guilty of an offence under section Section 489(2)(b) is liable on summary conviction to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

On Ballot Selfies: No Constitutional Question Here

Jake Edmiston writes in the National Post today about “ballot selfies”: the practice of taking a picture of a marked ballot:

This practice is clearly prohibited in Canada under section 164(2)(b) of the Elections Act.

In the article Mr. Edmiston raises the question of whether this prohibition is an unconstitutional restriction on freedom of expression. In Canada, there is no credible argument to support this view, and no credible group or individual advancing the cause. The quotations and examples used by Mr. Edmiston to build up a perception of uncertainty actually show how settled this issue is.

The article states that “constitution lawyers say the Canadian law could be open to a legal challenge similar to the controversial court case in New Hampshire earlier this month.” This sentence reveals nothing. All laws are “open” to a legal challenge.

This article may leave the impression that the constitutionality of this provision is unclear, but this is not an opinion to be relied upon.

Professor Dawood says it best that “a court would likely find that the ban is reasonably justified in a free and democratic society.” That is about as definite a statement as you are going to get from a lawyer.

There is no value in being able to show who you voted for. What is to be gained in terms of expression from tweeting a photo of your ballot, as opposed to just tweeting who you voted for? It is so trivial that a court might not even consider this a contravention of freedom of expression.The harm in showing marked ballots is real, and is a direct threat to the integrity of our elections. As correctly noted in the article, showing marked ballots allows for vote-buying and intimidation/coercion to take place. It is a step back two centuries in the evolution of elections.The case of Parker Donham does nothing to create any uncertainty to the reality that if you photograph and share a marked ballot you run the risk of a fine and potential jail time.

“Millions of Canadians denied the right to vote in 2015 federal election”

My friend from law school Priya Sarin writes about two recent election law cases in a column posted on today:

I discussed the Voter ID case earlier on the DLB. With the federal election looming (speculation is that the writs may be issued as early as Sunday), it seems unlikely to me that an injunction will (or should) be granted at this point. I don’t think people fully appreciate the scope of the challenge faced by election authorities in pulling off an electoral event. Training materials and information guides need to be prepared and distributed well in advance of polling day. This is one of the reasons why we have section 554 of the Election Act (Canada), which allows the Chief Electoral Officer six months to make sure that Elections Canada is prepared to enact any changes to the electoral legislation.

I noted the Expatriate rights decision here but Priya examines it in more detail, with a particular focus on the dissenting opinion. Priya writes that the case is expected to be appealed to the Supreme Court of Canada and I certainly would like to see how the court applies section 1 of the Charter to residency requirements. Provincial and territorial residency restrictions are much more exclusive than the federal ones, and while the recent attention has been on how some expatriates do not have the right to vote in the federal election, I have been wondering lately whether they are also concerned about not having the right to vote in a provincial or territorial election.