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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


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