REPORT OF THE COMMITTEE | THURSDAY, November 29, 2001 |
The Standing Senate Committee on Legal and Constitutional Affairs
has the honour to table its
ELEVENTH
REPORT
Pursuant to the Order of Reference from the Senate dated November 6,
2001, that the Standing Committee on Legal and Constitutional Affairs be
authorized to review the proposed Referendum Regulation adapting the Canada
Elections Act for the purposes of a referendum, tabled in the Senate on 16
October 2001, your Committee now reports as follows.
The Referendum Act, passed in 1992, allows the Governor in
Council to proclaim a referendum to consult the Canadian electorate “on any
question relating to the Constitution of Canada”. Only one such referendum has been held, on the proposed
Charlottetown Accord, in late 1992. Section
7 of the Referendum Act provides for the relationship between the Canada
Elections Act and the technical structure necessary to carry out a
referendum.
Section 7(3) of the Referendum Act authorizes the Chief
Electoral Officer to adapt, by regulation, the Canada Elections Act in
such manner as he or she considers necessary for the purposes of applying that
Act in respect of a referendum. Pursuant
to section 7(6) of the Act, a copy of each regulation that the Chief Electoral
Officer proposes to make shall be deposited with the Clerks of the Senate and
the House of Commons at least seven days before the day on which the regulation
is proposed to be made. The Committees of the Senate and the House of Commons
designated to review the proposed regulations may make such recommendations to
the Chief Electoral Officer as they consider appropriate.
The regulation adapting the Canada Elections Act for the
purposes of a referendum was first made in 1992, and was subsequently amended to
reflect changes in the electoral legislation. In all these instances, the
proposed Referendum Regulation was reviewed by your Committee, which
traditionally deals with matters and legislation relating to elections and
referendums.
A new Canada Elections Act, Bill C-2, S.C. 2000, c. 9, came into
force on 1 September 2000. The new
Act did not contain any revolutionary or radical changes, but did implement a
major reorganization of the Canada Elections Act.
A new referendum regulation became essential.
Your Committee concurs with the Chief Electoral Officer, who appeared on
8 November 2001, that the proposed Regulation appears to be a reasonable
adaptation. Many of the changes are
as simple as the substitution of the word “referendum” for “election”.
Your Committee commends Mr. Kingsley for the manner in which he has
carried out his duties under the Referendum Act, but also agrees with his
position that the adaptation of the Canada Elections Act for purposes of
a referendum should require parliamentary approval.
Your Committee raised the concern that tabling a proposed regulation
with Parliament at least seven days before it was implemented was insufficient
time for a number of reasons. The
Chief Electoral Officer noted that the problem would be obviated if the
adaptation of the Canada Elections Act required the approval of
Parliament rather than the approval of the Chief Electoral Officer.
While your Committee appreciates the assurance of the Chief Electoral
Officer that he would not implement such a regulation without having obtained
comments from, and the agreement of, the Senate and the House of Commons, we
agree that a far more satisfactory solution would be for Parliament to take
responsibility for approving the adaptation of the Canada Elections Act
to the referendum process.
Your Committee therefore questions the overall referendum regulation
process, and the role thrust upon the Chief Electoral Officer by the existing
legislation. The Chief Electoral
Officer himself described the power to adapt the provisions of one piece of
legislation to another as “a most unusual power…. It is unique at the
federal level”. The Chief
Electoral Officer, in effect, is authorized to make quasi-legislative changes
without the approval of Parliament. Your
Committee feels that this is neither fair to the Chief Electoral Officer, nor
consistent with our system of parliamentary democracy.
Your Committee wishes to note a second problem.
The federal government and several provinces have referendum legislation.
On some crucial points, such as residency requirements, expenditure
limits and free media access, the various Acts can differ significantly.
Clearly, any province can hold a referendum on its own question and under
its own parameters. However, the
Chief Electoral Officer noted that holding a referendum on one question under
two different legislative structures can result in administrative differences
that could disadvantage individual voters and groups. Your Committee notes that
constitutional questions, which are the only type that can be asked under the Referendum
Act, affect all Canadians, and therefore we urge the Federal Government to
work with its provincial counterparts to harmonize administrative rules so that
no Canadian is disadvantaged.
Finally, your Committee gave serious consideration to the relationship
between the Canada Elections Act and the Referendum Act.
Although the possibility of one combined Act was considered, your
Committee concludes that two separate Acts are by far the preferable option.
Therefore, your Committee recognizes that some mechanism is required that
would adapt any future changes in the Canada Elections Act to the Referendum
Act simply and expediently. One
method would be to include a clause in the Elections Act so future
amendments to that Act would contain consequential amendments to the Referendum
Act or Regulation.
Respectfully submitted,
LORNA MILNE
Chair