Great. Thank you.
I was legal counsel for the voters who challenged the last set of major amendments to the Election Act, when the requirement for approved voter identification documents was first introduced and the scope of vouching was restricted. That was at the trial level, in the case of Henry v. Canada.
In that case, both the B.C. Supreme Court and the B.C. Court of Appeal upheld that the voter ID requirements infringed the right to vote, guaranteed under section 3 of the charter, but ruled that the infringement could be justified under section 1. In the Henry case, counsel for the government admitted that there was no evidence of any substantial amount of fraudulent voting in Canada. The government argument justifying the rules was entirely based on avoiding a perception that there may be a risk of voter fraud.
There is an important difference between fraudulent voting and voting where there has been some procedural irregularity. The more restrictive or complicated the rules are for voting and processing votes, the greater the likelihood there is of procedurally irregular voting—that is, the more complex the process, the more that can go wrong. Above all, we need a simple, fail-safe measure to protect voters from unintended disenfranchisement.
In the Henry case, the government placed heavy reliance on the continued use of the vouching process as the fail-safe mechanism in its argument that the new rules were minimally impairing and would thus survive section 1 of the charter. Eliminating vouching and not replacing it with an alternative safety net so that the only way to establish the right to vote is through the production of identity documents would not only undermine the section 1 justification the government has advanced for the voter ID requirements; it would also predictably cause more improper voting than it could prevent.
Consider the number of adults in Canada at any point in time who are citizens, who have moved their residence from one constituency to another, but who have not yet updated their identification documents. When an election is held, if the only way to establish their right to vote is by producing approved documentary evidence of their address, the only place where those persons could vote is in their previous constituency, which is obviously not the right place for them to vote.
In the Henry case, what we proposed as a less impairing alternative means to achieve Parliament's objectives was to permit voters who don't have ID to swear declarations confirming their identity and their residence. We argued that this would actually be more meaningful evidence than, say, a library card and an Ontario wildlife card, which were both on the list of approved documents, especially in that swearing a false declaration is a crime. It would ensure that no citizen would be wrongfully denied their right to cast a ballot.
I hear in the news today that the minister has now said that he is prepared to consider amending the bill to provide for reliance on sworn declarations where voters cannot produce the approved ID at the polls. I welcome this development wholeheartedly. It is a far better and more straightforward fail-safe than vouching. This remedy would fix the problem entirely in relation to the impact of the bill on access to the franchise in Canada.
The right to vote belongs to the citizens of Canada and not to the government or to any parliament. Especially in the absence of any national consensus that proposed changes are appropriate, the government should not institute any changes that make it harder to vote. Our problem in this country is not that too many people are voting but that not enough people are participating in our democratic process.
Those are my comments. Thank you.