02/07/2014 05:33 EST | Updated 04/09/2014 05:59 EDT

Not Much Fairness in the "Fair Elections Act"

On Tuesday, Canada's Minister of Democratic Reform finally tabled the "Fair Elections Act," claiming it is designed to protect the fairness of federal elections. The Honourable Pierre Poilievre stated that the "Act will ensure everyday citizens are in charge of democracy by putting special interests on the sidelines and rule-breakers out of business."

No doubt the Act includes some positive and much-needed provisions:

Amendments designed to remedy the famous Guelph Robocall controversy aim to protect voters from rogue calls impersonating Elections Canada Officials.

Making the Elections Commissioner report to the Director of Public Prosecutions, rather than the Chief Electoral Officer, should ensure independence, notwithstanding the lack of cogent evidence that the current arrangement lacked independence.

Eliminating "vouching" for voters lacking the proper identification is long overdue and a no-brainer. The removal of the ban on reporting premature election results is not necessarily positive but is necessary in the age of twitter, blogs and the Supreme Court of Canada's pronouncements on freedom of expression.

However, the reforms do little to address the inherent and institutional unfairness in Canadian elections. I am not referring to the electoral distortions perpetuated by the winner take all, First Past the Post System that produces "majority" governments. I am referring to the explicit bias towards political parties in Canada's election financing laws.

Most Canadians (over 98%) do not belong to political parties. Yet political parties (and local riding associations) have the exclusive right to raise money and issue tax credit receipts outside of an election period.

Whereas the Conservative Party can raise money 52 weeks per year, an Independent candidate can only issue receipts after he or she has been declared a Candidate by Elections Canada. To be declared a Candidate, not only must an election have been called, but the Independent Candidate must have filed the requisite number of nominators and a $1,000 deposit with a Returning Officer.

Worse, a party candidate may transfer any electoral surplus to a riding association or registered party, while an Independent Candidate must remit surplus funds to the Receiver General of Canada. Finally, a party-endorsed Candidate is eligible to receive 50% reimbursement for qualified election expenses, provided the Candidate received 5% or more of the votes. Independent Candidates are not similarly qualified for a refund.

The combination of those two aforementioned rules means than in the 2015 General Election, the Conservative Candidate will be campaigning to unseat me using, in part, funds that I raised or was reimbursed for in 2011!

Given the importance of electoral financing in elections, the deliberate handicapping of independent candidates should be self-evident. To be competitive, even a modest campaign is going to require an investment of $40,000 for rented office space, lawn signs, brochures, telephone and internet service, and some local newspaper advertising. I suspect that I will start the October 2015 Campaign $50,000 behind the CPC torchbearer.

I am not entirely convinced these financing provisions are constitutional in a free and democratic society.

Section 3 of the Canadian Charter of Rights and Freedoms provides: "Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein."

So what about the vast majority of Canadians who choose not to join a registered political party? Certainly they can vote and Independent Candidates can seek office. But is doing so on such an unleveled playing field a violation of their democratic rights?

In 2003 the Supreme Court of Canada hinted that it might be. In Figueroa v Canada, Mr. Justice Iacobucci wrote that section 3 protects not just the right to vote but also the right to participate. It protects the "right of each citizen to play a meaningful role in the process." For a violation to exist there must be a prohibition against meaningful participation.

The Court opined that a voter must have an opportunity to balance various ideas in his or her own mind before meaningfully participating in an election. Putting various ideas before the voter requires access to financial resources.

Canada's electoral financing laws are unfair and possibly unconstitutional. However, given their bias in favour of registered political parties, I anticipate little support or sympathy from either the Government or the Opposition Parties.