Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 12 - Evidence, March 29, 2000

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, respecting the election of members to the House of Commons, repealing other acts relating to elections and making consequential amendments to other acts, met this day at 3:50 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, today we have before us, from the Privy Council Office, Michael Peirce and Isabelle Mondou.

Welcome to the Standing Senate Committee on Legal and Constitutional Affairs. Today we are hearing testimony on Bill C-2. We are in your hands. I understand from speaking to you beforehand that you will encourage us to ask our questions as we proceed through the bill rather than trying to leave them to the end and perhaps forgetting some of the points on which we have concerns.

Mr. Michael Peirce, Counsel, Director, Legal Operations, Legislation and House Planning, Privy Council Office: This is a technical briefing. We have a bill with more than 500 clauses in it. Fortunately, not all of the clauses are new. We will try to direct you to the substantive changes in the bill. I will also provide a brief overview of how the changes were approached.

The act has been modified by taking the old act and changing the structure of the act. In the previous act, for example, in the finances, you would have party finances in one place and candidate finances in another place. There are, at times, interrelations. You just would have a terrible time trying to find the stuff. We decided, following the advice of the House committee that had studied it, to reorganize it essentially to follow the electoral process.

As you would expect with all bills, we have the definitions in the beginning. We then have the electoral rights. They were put in Part 1 of the bill specifically to make a statement that those electoral rights are at the forefront of this bill. They are things like the right to vote, the right to be qualified as an elector, the right to vote only once, though, and things of that nature.

Parts 2 and 3 of the bill cover the people who run the elections, the Chief Electoral Officer and his staff and the elections officers.

Part 4 sets out the register of electors that was brought in with Bill C-63. That is, in effect, the permanent list of electors.

Parts 5 to 15 walk through the electoral process from the issuing of the writ all the way through to the return of the writ, literally in those stages as you would come upon them during an election.

After that, we have discrete sections of the bill, things that have relevance throughout the electoral period and even at times outside of the electoral period. There is a communications section in Part 16 and the third-party regime in Part 17. That is something that is entirely new, and I am sure it will attract some focus. I will not walk you through the rest of the parts at this time. We will get into the substance of it in a few minutes.

The language of the act has been modified. When you look at this bill, you will see that not only has the structure been changed, but the language has been updated. Thus, while much of it is not new, it will nevertheless appear new.

We had to correct the errors and omissions that had arisen over the last 30-odd years, and a number of inconsistencies needed to be addressed. We also needed to respond to some court decisions. Certain decisions have struck down parts of the act. Some court cases are ongoing, and we had to take account of those as well.

We also wanted the act to serve as a comprehensive legal reference. We pulled together some related acts and either put them in this bill or, in the case of two that were quite antiquated, recommended repealing them. The two acts that are repealed are the Corrupt Practices Inquiries Act and the Disfranchising Act.

The Corrupt Practices Inquiries Act allows for essentially a public inquiry to be held. Many of the powers that are relevant to that have already been developed subsequently and included in the act over the years under the powers of the Commissioner of Canada Elections who conducts investigations under the act. Neither the Corrupt Practices Inquiries Act nor the Disfranchising Act has been used since 1917. At least, that is the latest use that we could find.

The Dominion Controverted Elections Act is the act that has been used to challenge an election in the case of an irregularity, fraud or corruption. Other grounds in the act -- undue return, a double return, no return -- are concepts that have built up a history of their own but that were based really on the antiquated procedures that existed. We have put that in Part 20 of the bill and have updated the procedures so that they work both with the modern Canada Elections Act and with the modern court system.

Turning to the first six parts of the bill, I will highlight the major substantive changes.

Under this bill, returning officers are allowed to vote. You may be aware that returning officers currently do not vote. Their only role in the vote now is if there is a tie vote; they have the casting vote that breaks that tie. Given the Charter guarantee, the right to vote in Section 3 of the Charter, it was felt that it is unconstitutional not to allow election officers to vote, to disenfranchise them. Therefore, under this bill they are given the vote and we would deal with a tie election by determining that a new election would be held in the riding in which the tie occurred. It is extremely rare that a tie occurs in this country. Are you aware of an instance?

Senator Joyal: One.

Mr. Peirce: We do not expect that we will end up with a situation where we will have new elections in the event of a tie on a regular basis. It should be extremely rare.

At the committee stage, a provision was added to the bill to allow the Chief Electoral Officer to study new voting methods -- most notable here, electronic voting. The CEO is authorized to develop and test electronic voting. However, the CEO cannot test that electronic voting in a live election.

The Chairman: To what clause are you referring?

Mr. Peirce: That is clause 18.1. You will see in the last sentence that the process may not be used for an official vote without the prior approval of the committee of the House of Commons that normally considers electoral matters.

Senator Fraser: Why would the Senate not be involved in these deliberations?

Mr. Peirce: I recommend that that question be put to the minister as opposed to officials.

Senator Cools: I did not hear that. Which section are we speaking of?

The Chairman: Clause 18.1.

Senator Cools: There is an answer to that.

[Translation]

Senator Beaudoin: You say we have to wait for the minister to be here, but it is in the bill we have before us. Is there a special reason for us to wait for the minister to get here?

Ms Isabelle Mondou, Counsel, Legislation and House Planning, Legal Counsel, Privy Council Office: The proposal suggested by the committee was the one that is in the bill, so the committee did not make any proposal to include the Senate.

Senator Beaudoin: Under our present act, if there is an election and the votes are tied, the president must vote. Our vote is secret, but it then becomes public, at that point. Our constitutionalists, in Canada, have all said that this does not make any sense so why not give that man or woman who is the president of the riding the right to vote? What happens with the new bill?

Ms Mondou: That person now has the right to vote in all cases, just like any other citizen, and not just in case of a tie. If there is a tie, then there will be a new election held. Of course, there will automatically be a count to verify whether the vote is tied. If that is the case, then there will be a new election for that riding.

[English]

Senator Cools: Senator Fraser's question is valid and the committee should look at it. If I am not mistaken, the Canada Elections Act comes out of age-old times when the Speaker and the Clerk of the House of Commons used to supervise elections directly, and so the Canada Elections Act still has residual elements of that. The House of Commons has a particular superintendence over the supervision of elections. Originally, I believe, elections were conducted under the supervision of either the Clerk or the Speaker of the House of Commons. That is an important point because there would be many sections in the act that still reflect that. It is something that we should investigate. This committee should know whether or not the Senate is being slighted in this clause of the bill or whether or not there is a proper historical and constitutional explanation. We should have someone come before us who can explain this. I think Senator Fraser has raised an important question.

Mr. Peirce: I turn next to the verification of nomination papers. Previously under the act, there was no actual requirement for the nomination papers.

Senator Fraser: Could you give us the numbers of the clauses as you go through this?

Mr. Peirce: Certainly. This is subclause 71(2). The provision now added requires that, within 48 hours, nomination papers must be verified, with either confirmation or rejection of the nomination papers. Hopefully, candidates will get their nomination papers in early and have them confirmed within 48 hours. Then, if there is an irregularity, they will be able to resolve the irregularity rather than create a situation where a nomination is done, is not confirmed and is subsequently challenged, perhaps even after an election.

The next change is contained in clause 73. This is part of the modernization of the bill. It is permits electronic filing of nomination papers. The process, in essence, is that you must get your deposit in by the close of nominations, and you can file your forms electronically by the close of nominations, but you must submit the originals within 48 hours subsequently, within the verification period.

The Chairman: May you fax them in?

Mr. Peirce: You may fax them in, we may have e-mail, whatever future developments may hold.

Next we turn to candidates' rights of access to buildings to canvass. This is in clause 81. Candidates have had the right to access to buildings to canvass. However, that right was unenforceable. There was no offence for denying access. In addition, the right was characterized, in general terms, to be within reasonable hours. We have now added an offence so that it becomes enforceable, and we have stipulated that the period is from 9 a.m. to 9 p.m. However, we have created an express exception for those places where a right of entry may put the physical or mental well-being of someone at risk.

The Chairman: Where does it say that they have committed an offence?

Mr. Peirce: The offence provisions are collected at the back of the bill.

Senator Buchanan: What clause are we looking at?

Mr. Peirce: Clause 81. The offence is included in clause 486 of the bill. We have collected all of the offences, moved them to the end of the bill, and broken them down by part; so if you are a candidate, you know that you can look under the offences in Part 6 and find all the offences that apply to you as a candidate.

I was explaining that there is also an exception created to the right of entry in those situations where entry may put at risk the physical or mental well-being of the residents. There are two kinds of situations where that might arise. One is at shelters for battered women, where granting the right of entry may lead to the revealing of who is sheltered there, and that information ought to be protected to protect security. It is not specifically limited only to that situation. That is one example. Another example might be in a mental health institution, where having a candidate within the corridors may by itself cause some disruption, and sensitivities may be affected.

Senator Andreychuk: Could you explain to me exactly what occurred in the previous section 81? It seems to me those provisions are outdated. We had single dwelling units and apartment buildings in the old days. Now we have apartment buildings and condominiums and all of these new types of dwellings. I do not understand the phrase "no person who is in control of." If a condominium corporation puts in security doors that preclude access into the building, including the common area, and that is the will of the majority in the condominium, will this clause overrule that?

Mr. Peirce: That is correct.

Senator Andreychuk: Thus it will allow people to enter a building even though it may jeopardize their safety? The reason we have those things is for our security and well-being. I can tell you of many places, some that I have lived in and continue to live in, where we simply do not let anyone in because we have some people who live alone and they are paying for those security measures to ensure that no one goes through there for any sort of canvassing. You do have the little buzzer system so that you can get to the apartment, but you do not get access into the building. You seem to be saying that, even under the previous act, it would be an offence if you did not allow them to open the door.

Senator Cools: Of course, and so it should be. Otherwise, how would candidates canvass huge complexes, if they could not get in?

Senator Andreychuk: They have communication systems that would allow that.

Senator Cools: If you canvassed in some of these huge complexes, you would need to run back downstairs every time to get let into one. Candidates usually take a floor and work the entire floor; they knock on every door. They cannot do one and then run back downstairs and press a button and say, "I am your candidate, may I be allowed in?" Those of us who run in elections know you identify yourself to the superintendent of the building and then that person give you access to the building. Superintendents do not give access to every Tom, Dick and Harry, of course.

Senator Andreychuk: What if there is no superintendent?

Senator Cools: There are ways to work these things out.

The Chairman: Since they are now making it enforceable, I believe the intent is and always has been for candidates to be able to present their case to the voters. It always has been a right of candidates to be able to access every single voter. That is part of a democratic election and always has been. This new addition to the bill makes it enforceable, puts in a few teeth. I have gone to apartment buildings in the company of policemen, because otherwise the superintendent would not allow me access.

Senator Joyal: I remember that in my experience as a candidate, in a residence where there are people who are not fit for expressing a capacity for a preference, the people in charge of determining the condition their health on the day of the vote would fill out some form where they would say that the person in room X is unfit for exercising his or her capacity. They would do that in all respects for the physical conditions. However, if the person was being taken care of by a family member or someone closely related, that family member would be allowed to vote in the place of the incapacitated elector. The reason for that is the very principle that you have stated: you cannot disenfranchise someone from voting if there is someone to take care of the person and express the will of that person. In other words, it is a "liberal" interpretation of the right to vote.

Senator Andreychuk: That is a perfectly valid word. I like that word. It is when you capitalize it that I have problems.

Senator Joyal: I saw that Senator Buchanan did not move a feature of his face.

Senator Cools: He is accustomed to that.

Senator Joyal: I wish to reconcile with that clause, that we are not in fact restricting the interpretation of the right to vote in a democratic system by giving too much of a capacity to in fact bar the person from voting.

Senator Buchanan: I like this clause. Let me tell you why. I ran eight elections, won eight elections, and won four straight provincial elections. Therefore, I know something about politics. I used to tell candidates who ran against me, or at least ensure that they knew, that the best time to campaign in a suburban area was at four o'clock in the afternoon when the soap operas were on. I would tell them that that is the best time to go because all the women are home. Oh yes. I am not sexist. I would tell my opponents that the building you mentioned, where most people said that they do not want canvassers, was the best place to canvass.

Senator Fraser: My question is basically about the way this bill hangs together, and it arises out of the discussion of where we find that it is an offence. I found that it is an offence and then I looked to see where the punishment was, and then I went leafing a further 16 pages along to discover that this is an offence liable to imprisonment for up to six months.

The Chairman: What page is that on?

Senator Fraser: That is on page 222, subclause 500(3), and the relevant item here is if you are guilty of an offence under subclause 486(2). This seems to me to be a slightly complicated way to proceed. You will have some 300 returning officers across the land leafing through furiously. Would it not have been simpler just to state everything at once? For example, in clause 81, would it not have been simpler to say something like "every person who does this is guilty of an offence and is liable to punishment of..."?

Mr. Peirce: To some degree that is how it was before and we played with different formulations to try to fit this together in the most user-friendly way. We found that previously most people ended up flipping all over the place to find offences because it is offences that they often work with. They could not find the offences because they were not all collected together by part.

It is a three-step process. You find the section, you find the offence and then you find the punishment. Once you are familiar with the fact that it is a three-step process, it becomes relatively easy to do. We did try other formulations. We found that we had problems with just how big the bill got, for instance, because instead of just listing them all together you had to set them out individually. We have a pretty large bill as it is; therefore, it was in the interests of accessibility.

Senator Fraser: In your view this is the least complex?

Mr. Peirce: The least complex, yes.

Senator Fraser: It remains very complex.

The Chairman: There is a problem with this. As you are reading through the bill clause by clause, there is nothing in any clause to say whether it is an offence. You must constantly refer to the back to say, "Well, do I really need to do this or not?"

Mr. Peirce: Generally, seeing that it says "shall" will direct you to the fact that there is an offence, and then you can go and find the offence.

The Chairman: It does not say "shall" on this particular point.

Senator Fraser: It says "may".

The Chairman: Does it say "shall"?

Senator Fraser: No, it says "may".

Mr. Peirce: I had to pick the worst example. "No one may" do something is in opposition to "someone shall" do something.

Senator Cools: I think these clauses are directed to highly urban ridings where there exist dense concentrations of people and dense concentrations of apartment buildings. Toronto ridings, for example, will have 250 apartment buildings. For some of the rural constituencies it is not a problem.

This particular provision is especially important because this is where one sees politics operating on a very local level. You could have a partisan of one stripe in a building blocking the partisan of the other stripe out of the building. This thing can get so bad that the person who is doing the enumeration of a building will skip the doors of people they know will vote the other way. This is on the ground, in a very local way, where these particular clauses of the bill become very important. Therefore, I understand fully the intentions of the clauses in respect of those questions.

I do not understand the inclusion of battered women's shelters. Usually battered women's shelters do not house mentally ill or sick people. Why would legislation place any group of people beyond the reach of prospective members? I do not understand that.

Mr. Peirce: Battered women's shelters are not specifically identified, but there is reference to residents whose physical or mental well-being may be harmed. If someone's well-being may be harmed, we suggest that that is a justifiable standard for limiting the right of access. Hopefully, such cases will be rare, but we did hear from people who indicated that, at times, this is a very real problem. The location of women's shelters is generally guarded information.

Senator Cools: They are all listed in the telephone books. That is not guarded information at all.

Any person can choose not to speak to any candidate. That is where I am having the difficulty in respect of the earlier part of the provision. If a candidate is knocking on doors to talk to people, the people can either not answer their doors or holler through the door and say, "You are a Liberal; go away. Only Conservatives need stop," or whatever.

Essentially, the person who is being canvassed has a right to speak or not speak to the candidate. That is my difficulty. People can always tell a candidate to go away, that they do not like their sign. They may even say that they are yellow dog Liberals and will not talk to any Tories. A yellow dog Liberal means someone who would vote Liberal even if the candidate were a yellow dog.

The Chairman: There is no such thing.

Senator Cools: I do not understand why such a provision would make its way into the proposed legislation.

Mr. Peirce: Here we are talking about multiple residences.

Senator Buchanan: There was a classic situation in Halifax about three elections ago. A candidate of a certain party demanded the right to enter a condominium in Halifax. He went to the point of getting a lawyer. Finally they were ordered to let the candidate in. The candidates of the other parties did not try to enter. The condominium residents then joined together, held meetings and determined to defeat the candidate who was going against their wishes. That candidate lost. From that complex, 75 per cent of the vote went against him. In practical politics, you would never make such a demand because of the danger of them mobbing against you, no matter what party they support initially.

The Chairman: This is a long bill. If we spend 15 minutes on each point, we will never get through.

Senators will note that visiting us today are some first-year law students from the University of Ottawa who want to see how we comport ourselves.

Senator Poy: Mr. Peirce, my question relates to Senator Cools' issue. Who makes the decision that the well-being of the residents in the building will be harmed by the candidates? Who decides which buildings can be entered and which cannot?

Mr. Peirce: The first stage of the decision is made by the person in control of the building, but that person must make the decision in conformity with the bill. I would have to confirm this but I expect that Elections Canada will issue guidelines on how to assess that question.

At the next stage, the commissioner determines whether the decision of the building controller was in conformity with the legislation. The Commissioner of Canada Elections can enforce the proposed legislation. If someone makes a decision denying access without real authority, it would be possible to bring a prosecution or use other enforcement tools that I will explain later. There are options that are more flexible than enforcement, such as compliance agreements.

Senator Poy: The person who runs the women's shelter may disallow all candidates, but that person's decision can be overturned?

Mr. Peirce: Yes.

Senator Poy: What happens in a hospital? Forgive my ignorance, but do candidates go from room to room? Would doctors be able to say that certain patients may not be visited?

Mr. Peirce: Yes.

Senator Poy: How would they signify that? Would they post something on the door of the patient's room?

The Chairman: The practice presently, and for quite some years past, in hospitals and in nursing homes is to allow candidates and their representatives to canvass under supervision of the medical personnel.

Senator Poy: That is unless there is a sign on the door saying that no one is allowed in.

The Chairman: Absolutely. I suggest that the senators write down the numbers of the clauses with which they are concerned and allow the witness to proceed with less interruption.

Mr. Peirce: Clause 87 deals with the removal of the official agent. Previously, under the act, an official agent would no longer be there only due to death or incapacity or resignation. There was no other way of removing the official agent of a candidate. That was of some substantial concern. Certainly the candidate must have a great deal of trust in the official agent. If that trust is broken, it may be necessary to remove that official agent. The official agent's handling of money also potentially puts the candidate in a position of violating the act by their actions. This is a situation of great trust and it was determined appropriate to create the power to remove the official agent. That power is created under clause 87.

Clause 110 relates to the use of lists of electors. Registered parties can use the list of electors to recruit members. Similarly, candidates can use the list to solicit contributions. A candidate, subsequently elected, cannot use the list under the current legislation to seek contributions or to recruit members for their party. We thought that created an inconsistency between candidates and parties, so we have added members.

Next we move to clause 128, which sets the voting hours. As some of you may be aware, in the last election polls closed in Saskatchewan after Alberta and British Columbia as a result of the staggered voting hours and the fact that Saskatchewan does not go on daylight saving time. Thus, when the rest of the country goes on daylight saving time, all of their voting hours shift by one hour, except Saskatchewan. We have now added a specific provision in the proposed legislation to set the voting hours in Saskatchewan in the event of daylight saving time. In the Central Time zone in Saskatchewan, when the rest of the country is on daylight saving time, the polls will be open from 7:30 a.m. to 7:30 p.m.; and in Mountain Time, the polls will be open from 7:00 a.m. to 7:00 p.m.

Ideally, it would have been nice to put Mountain Time and Saskatchewan at the same time as Central Time, but that would have resulted in the polls opening at 6:30 a.m. and closing at 6:30 p.m. A compromise had to be reached and 7:00 a.m. to 7:00 p.m. still serves the purpose of ensuring that the polls will not stay open in Saskatchewan, even in the Mountain Time zone, after the polls are closing in Alberta and British Columbia.

Senator Andreychuk: To clarify that, most of the provinces are on Central Time, and then there is a ridge towards the west that is on Mountain Time. However, it is a local option and constituencies and areas are liable to change. I tried to introduce a bill that would cover that and was told that it would be in this bill. However, I subsequently found out that there is a further problem: there are constituencies where part of the constituency is in the daylight saving zone and part is in the Mountain Time zone. How is that handled? Does this clause cover that? It is tricky to figure out where you are. The local option as to whether you go to daylight saving or Mountain or Central Time relates to boundaries that deal with municipal and provincial issues, not federal voting constituencies. Therefore, they do not follow the same boundaries, and we have ended up with some being in at least two of those.

Mr. Peirce: There are examples of that. In fact, there are examples of that existing in other areas of the country as well. In those circumstances, the returning officer must elect, in consultation with the Chief Electoral Officer. That is how they address the problem. As well, realizing that it is difficult to reach a perfect solution to these problems and that future problems may arise if provinces change their choice, we have also invested the Chief Electoral Officer with discretion to address the problem and resolve it, if necessary.

Senator Andreychuk: Will clause 130 do that?

Mr. Peirce: We have clause 130, and clause 129 also deals with daylight saving time.

The Chairman: Let us move on to the next section, please.

Mr. Peirce: We have done clauses 128, 129 and 130. They are together in bulk. Clause 131 is next. It concerns setting the time during by-elections. If we have one by-election or more than one by-election all within the same time zone, the polling hours will be from 8:30 a.m. to 8:30 p.m. However, if we have more than one by-election and they are in different time zones, it reverts back to the staggered voting hours that were brought in with Bill C-63.

The next area is clause paragraph 135(1)(f). It is a small change, but not insignificant. This allows the Chief Electoral Officer's staff and special observers authorized by the CEO to attend in polling places. For example, oftentimes, because the Canadian electoral system is a model system looked to from around the world, observers from foreign countries come to observe our practices. This will allow them access to observe.

The Chairman: They could always come in anyway.

Senator Andreychuk: This is a very important point. It is not just to observe. We go to other countries to analyse and assess whether it is a free and fair election. Therefore, it is the reciprocity that is involved here. That is to say, we understand that others have the same capability of coming here to assess whether our elections are free and fair.

Mr. Peirce: Yes, we are inviting them to come and look at ours as well.

The Chairman: At this point, I must point out to everyone that I have to leave at 5:00 p.m., as does Senator Pearson. Senator Beaudoin has agreed to chair until he must leave, at 5:30 p.m. We cannot find anyone else to volunteer to chair after that. I suspect that your time limit is now 5:30 p.m.

Mr. Peirce: We will move along with that in mind.

The next area is clause 161, dealing with vouching at the polls to vote. That was allowed only in rural ridings previously. We have extended that so it applies equally. The distinction between "rural ridings" and "urban ridings" seems to have broken down to some degree and we could not come up with a clear rationale for distinguishing here.

Now that we have a register of electors, vouching occurs only where your name is not on the list of electors and you do not have any identification. Therefore it should be fairly rare that vouching has to take place. The elector takes an oath and the person who is vouching takes an oath. There are two limitations: they must be from the same polling division and one can only vouch for one elector. That reduces any risk that there will be widespread fraud as a result.

Senator Fraser: Does it include showing proof of Canadian citizenship?

Mr. Peirce: Yes.

Next is Part 11, "Special Voting Rules." Under subclause 233(1.1), anyone who is a qualified elector can vote under the special voting rules. If you wanted to vote under the special voting rules, you had to indicate that and then you could vote under the special voting rules.

Persons in physical danger -- again, an example may be women in shelters -- are able to give their former place of residence for the purpose of the special voting rules, rather than their current place of residence. Thus, they can indicate, for example, the home that they may have left instead of the address of the shelter.

The Chairman: Will that mean that they must vote in that original polling subdivision?

Mr. Peirce: No.

The Chairman: They can vote in the new one?

Mr. Peirce: That is right.

Next is the assistance provided to electors under clause 243.1. These are electors who are unable to read, or unable to write on the ballot, and are unable to go to the polling station. In the current act there is a provision which deals with those who are unable to read or write, and a provision which deals with those who are unable to go to the polling station. There is no provision that deals with the two situations combined. Clause 243.1 does that. An elections officer can go to the residence, complete the declaration, and mark the ballot in front of the elector and a witness selected by the elector.

Senator Joyal: Does that happen on the advance polling day or on polling day?

Ms Mondou: It happens when the person is available.

[Translation]

That depends. If the person has chosen to vote in advance, then he will be able to vote early and if he chose to vote on polling day, then he can have help on polling day.

[English]

Mr. Peirce: Next, clause 228 deals with Canadian electors living abroad. Canadians who are abroad are currently able to vote by mailing in their ballots. This bill would allow them to vote at an embassy or consulate. It is just to facilitate the process. We worked with the Department of Foreign Affairs to ensure that this is a workable process.

Under Part 16 of the bill, clause 322, I would point out the right of electors to display signs in apartments and condominiums. Some leases or condominium agreements prevent the display of election signs. This clause would override those clauses, permitting electors to display signs, subject to reasonable restrictions on size and placement.

The Chairman: Is there a penalty associated with this?

Ms Mondou: Yes, there is.

Senator Buchanan: What happens to signs on or in a building where a polling station is located? Which clause of the bill would apply?

Ms Mondou: The section in the current act that prohibits signs in a polling station has not been modified. It is still there.

Senator Buchanan: It overrides clause 322?

Ms Mondou: Absolutely.

Senator Joyal: On that point, would this provision be applicable in the context of a national referendum? I want a clear answer on this because it could be very tricky in a national referendum.

[Translation]

Ms Mondou: The Referendum Act draws inspiration from the provisions of the Elections Act and must be adapted to certain provisions of the Elections Act. In that case, it would be up to the Chief Electoral Officer to adapt the provisions that were amended in the Elections Act to apply them to the Referendum Act. So the answer is yes, the Referendum Act is not modified as such, but the provisions in the Elections Act apply in the context of a referendum. Thus, by making the necessary adaptations, this provision would effectively apply.

[English]

Senator Buchanan: Have you considered a constitutional challenge of this?

Mr. Peirce: Yes, we have.

Senator Buchanan: Leases and condominium agreements fall under provincial responsibility. How can a federal elections act override leases or condominium agreements?

Mr. Peirce: We are confident that, in pith and substance, this is about elections.

Senator Beaudoin: This is a bill directed to elections.

If I understand it correctly, there is a restriction in clause 322.

Mr. Peirce: That is correct.

Senator Beaudoin: What is the restriction?

Mr. Peirce: The restriction is reasonable size and placement.

Senator Beaudoin: Who decides what is reasonable?

Senator Andreychuk: The courts.

Senator Beaudoin: If I remember correctly, under the Canada Elections Act the Commissioner of Canada Elections has tremendous power. He may adapt the law in a referendum or any other such situation mutatis mutandis. I understand that the commissioner currently has that power. For example, if something is not clear cut, he may settle the issue.

Mr. Peirce: That is correct.

Senator Fraser: The decision may be challenged.

Senator Beaudoin: Yes, it may be challenged in the court.

The Chairman: As we cannot finish with these witnesses today, we will schedule another meeting to hear from them further.

At this point, I will ask Senator Beaudoin to take the chair.

Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.

The Deputy Chairman: It is understood that we are not precluding the possibility of revisiting clauses we have already discussed.

Senator Joyal: May I leave our witnesses with one question to investigate?

The Deputy Chairman: Yes.

Senator Joyal: The last referendum in Quebec was conducted under the Quebec referendum legislation. This is a much debated issue because it relates to freedom of expression. Does a person have the right to use his premises to advertise his choice?I am wondering about the discrepancy in freedom of expression that exists between conducting a referendum under provincial law and under federal law. This is a very important issue. The mandate of the Senate is the protection of the fundamental rights and freedoms of citizens in relation to the democratic exercise of rights.

I would like you to investigate that subject. We all know that some citizens display the Canadian flag on their balconies. There was a debate on whether their leases or condominium rules allowed them to do that, whether it was seen as advertising.

The Deputy Chairman: There is a precedent. I remember that during the last referendum, the federal authority represented all the provinces, and in Quebec it was the provincial authority. There were no adjustment problems between the two.

Is this provided for in the new electoral bill?

Mr. Peirce: We will prepare something which will respond to your concerns.

The Deputy Chairman: Thank you. If a precedent has been set, that means it may happen again. This is very important. We frequently forget that the federal government has the right to hold a referendum, which could affect the whole of Canada, at any time and on any subject within its jurisdiction.

Senator Buchanan: Nova Scotia has a Condominium Act, a Landlord and Tenant Act, and a Tenancy Act. All of these acts set out the rights of tenants, the rights of landlords, and the rights of condominium owners. As I recall it, one of those rights is to have clauses, in the lease or in the condominium agreement, which allow for privacy within the complex. That is a provincial matter. Leases and condominium laws are provincial matters.

You have told us that the clauses you refer to could withstand a constitutional challenge and they are not ultra vires the Government of Canada; is that correct?

Mr. Peirce: That is correct.

Senator Buchanan: Why?

Mr. Peirce: This is about a federal election and it is only about a federal election. There is no attempt to regulate tenancy in general, or to regulate condominiums in general. It can govern in the circumstances of a federal election without invading the provincial field per se.

Senator Buchanan: What if a condominium owner contends that the federal authority is invading the provincial field because he has a condominium agreement that provides him the right of privacy in his unit? He owns that unit.

Mr. Peirce: This will be a federal election law.

Senator Buchanan: Yes, but your law will be ultra vires the federal government as far as this clause is concerned.

Mr. Peirce: Our view is that the courts will uphold the electoral law.

The Deputy Chairman: Senator Buchanan, I do not think that creates a major problem. These laws have been in place for over a century, and Quebec has had a civil code for more than a century. Quebec provincial institution law must apply as it relates to leasing, housing, and so on. I do not remember having seen one case on this point. It is up to the federal authority, of course, to adapt its own legislation to cover all cases. However, I would not say that it is impossible to have a conflict, because it is possible.

Senator Buchanan: These clauses are new, so there can be no case law.

The Deputy Chairman: Leases have not changed very much.

Senator Joyal: I think Senator Buchanan is right. There have been no cases, but there can be a comparison with other federal initiatives that are not seen to be direct initiatives to try to regulate the domain that is totally within the purview of section 92.

We had a discussion about the corollary power that would flow from the main responsibility under section 91.

The Deputy Chairman: You are referring to the ancillary power.

Senator Joyal: Yes, ancillary power or what we call "les pouvoirs incidents." It was on that basis, essentially, that the argument would be put.

Senator Buchanan: If someone comes to me and asks me to take the case, I will certainly agree to take it.

The Deputy Chairman: Please proceed.

Mr. Peirce: I will now look at a number of clauses together, clause 323 through 328. These clauses deal with the blackout on polling day, and touch on new election polls and on political advertising.

In the original bill there was a blackout for 48 hours. That was changed at committee to be on polling day only. The same blackout period applies to public opinion polls, as it were, or political advertising.

The blackout will apply to political parties, candidates and third parties.

This needs to be set in context. The context is the court decisions. A ban on the publication of election polls was struck down by the Supreme Court of Canada in the Thomson case. The Thomson case led to a shorter period. Instead of a 72-hour ban, it is now only on polling day.

We have also added a requirement to publish methodology. What the court said in Thomson was that it was appropriate to have a ban on polls but, they posed the question: If you really want to achieve your objective, should you not require the methodology to be provided with respect to polls so that people can assess their validity? The Supreme Court found that there should be a shorter period and a provision requiring that, when a poll is first published, for the first 24 hours, the publisher or broadcaster must provide certain methodological information.

The Deputy Chairman: Let us be clear on this. Before the decision, it was 72 hours.

Mr. Peirce: That is right.

The Deputy Chairman: Under the proposed legislation, how many hours is it?

Mr. Peirce: It is just polling day.

The Deputy Chairman: When does that start?

Mr. Peirce: Midnight.

The Deputy Chairman: The night before.

Mr. Peirce: It goes until the polls close, the day of the polls. It will be less than 24 hours.

Senator Buchanan: Is the Internet covered?

Mr. Peirce: The Internet is covered as well, but I want to be clear that there is an express exclusion for personal Web pages, as it were, personal sites on the Internet. The definition of election advertising is found in clause 319(d).

The Deputy Chairman: Does that pertain to the Internet?

Senator Buchanan: If the candidate has his own personal Web page, he can advertise on it.

Senator Joyal: Would that include you?

Senator Buchanan: If I were the candidate, I could.

Mr. Peirce: Yes.

Senator Fraser: I have substantial difficulties with some of this as it relates to opinion surveys. I am referring to clause 326. As I read this, it would prohibit the publication of leaked polls, that is to say, partial polls. I do not see the justification for that. As a former journalist I can conceive of many situations in which the publication of leaked polling material, even though incomplete, would be in the public interest, would be contributing to public information. This just stops it cold. Why? The answer must be that, without any information to assess the poll, it is somewhat dangerous to put the poll out there with no ability to assess it.

Senator Fraser: Let me construct a bit of a hypothesis here. Suppose that I am a reporter covering party A, and party A is campaigning on the basis of a particular formulation of words, let us say "sovereignty association". Let us suppose that I am provided with leaked material and, to protect the identity of the leaker, I am not given the covering material. Let us suppose that this material demonstrates that party A's formulation of words is, perhaps, carefully chosen because we can see that people do not understand what they mean. If you rephrase the questions, you get different results. Let us say that what I am given is photocopies of the actual polling report, probably from a reputable firm. However, I do not have the cover sheet which sets out, for example, that 2,004 respondents were interviewed between December 3 and December 5, according to XYZ statistical method. All I have is the substantive content of that poll which could be of use to the public in assessing the veracity of party A. Am I not allowed to publish that?

Mr. Peirce: You would be in a position to report on the issue. As to actually publishing the poll, it seems to me on the face of it that that would be covered by this clause, and prohibited.

Senator Fraser: It would be better for me to report what my readers would assess to be a rumour than to report information that I have in my hands.

Mr. Peirce: Information which they are not in a position to assess, yes.

Senator Fraser: I have serious difficulty with that.

I am also extremely interested in subclause (3) which states that, on request, a sponsor shall provide a copy of a written report on the results which shall include certain things. First, to whom is it provided, to anyone?

Mr. Peirce: Whoever makes the request.

Senator Fraser: This includes issue reports. On occasion, issue polls can be thicker than these briefing books.

Mr. Peirce: They can charge a fee.

Senator Fraser: I understand that. However, still and all, I can see serious abuses happening in that regard.

The subclause states further that the report shall include the dates and time of day of the interviews. I have seen a great many polling reports, perhaps not as many as some of my colleagues, and they do not usually specify the time of day of the interviews.

Ms Mondou: Perhaps I can explain this clause. For example, let us say that you interviewed everyone at the same hour of the day. You may have interviewed people at home, which may provide you with a certain picture. If you do not interview people at different hours, it can be misleading. Let us say that they called people at 7 a.m. and no one was at home. Yet, the survey shows something different. If you do not have that information, you may be misled by the result. That is what specialists have told us.

Senator Fraser: My experience with the specialists is that they draw up 77 categories from Sunday the kinds of people they want to reach, and they keep calling at all hours of the day until they fill their quotas for each of the categories.

That clause bothers me less than the earlier one which would ban the publication of leaked polls. I regret to say that I am not persuaded by your explanation.

Senator Joyal: I am trying to remind myself of the principles that were stated by the Supreme Court in the Thomson case which has been cited. On the basis of what Senator Fraser has raised, the court took the approach that freedom of expression should be interpreted as widely as possible. I wonder if the conditions in clause 326 would meet the test of what is reasonable in a free and democratic society. As you know, there is always a limit to the freedoms that are stated, enumerated and confirmed in the Charter of Rights. It is reasonable limits in a free and democratic society.

Taking into account the way the court has interpreted that limit on the banning of polls, I am not convinced that this clause would survive that test.

Let us say that it is a fabricated poll by someone who has an interest in throwing it into the public domain. I would prefer to see that phoney poll published with the qualification: "No methodology available," than to ban outright the publication of that poll.

Speaking from my own personal conviction, this raises a fundamental issue of the Charter.

The Deputy Chairman: I think we should keep that question for the minister when he appears tomorrow. It is one of the most important amendments that is being proposed. It follows the decision of the Supreme Court in the Thomson case. Obviously, I, for one, would like to have the minister answer that question tomorrow. I believe our witnesses will be returning tomorrow with the minister.

Mr. Peirce: That is correct.

Senator Buchanan: I do not know if polls really help or hurt in an election, but I will tell one little story. You can check this to see how accurate it is.

Every Saturday before the election of 1988 in Nova Scotia, three Liberal candidates had young people give people in a long line of cars in the Sackville-Bedford area a free copy of The Daily News. Our elections are held on Tuesdays. On the Saturday before the Tuesday, people were out lining the main highway. When the cars would stop at the traffic light, they would have thrown at them a free copy of The Daily News. They were out there for over an hour until someone noticed that the headline read, "Poll Shows Buchanan Ahead by 8 per cent Over Liberals." It was an Angus Reid poll. They continued for over an hour to give people these free newspapers.

When we heard about it, we thought, "Is that not smart of our candidates in Sackville and Bedford to do that." It was Liberals who were doing it. We won every one of the seats out there, but I do not think the poll helped. What do you think?

Mr. Peirce: I would rather not speculate in that particular instance.

Senator Fraser: It is appropriate to require, where possible, publication of technical information. Clearly this is pertinent information. I would be interested in a more detailed examination of the justification for banning publication when it is not possible to have that technical information and, in particular, in having such a ban exist throughout the campaign. Perhaps one could understand a little more easily it being in effect for the last 72 hours; but, throughout the campaign, is something with which I have difficulty.

Mr. Peirce: May just clarify a couple of small points? The first is that the ban is effectively only for 24 hours.

Senator Fraser: The ban on publication of a leaked poll is throughout the election period.

Mr. Peirce: It would only be for the first 24 hours.

Senator Fraser: A leak, by definition, is transmitted to the public.

The Deputy Chairman: A leak is something else.

Senator Fraser: That was my concern. If a reputable news organization has sponsored a poll, it can flout the public with all the technical data it wants. I am concerned about constraints on the ability to report upon partial but potentially very significant events.

Mr. Peirce: A balancing had to take place. Can we craft a system that works that into the system as well as requiring the publication? If not we may well end up with just leaked polls.

Senator Fraser: No, you would end up with media polls wall to wall, the way you do now.

Mr. Peirce: For clarification, and turning to clause 327, polls that are not statistically valid may still be published. They simply require a statement that they are not based on statistically valid information.

Senator Fraser: That is not my concern.

Mr. Peirce: That was in response to Senator Joyal.

Senator Joyal: That does not change the comment I made about the leaked poll. The principles remain the same. The principle and the definition of what is reasonable in a free and democratic society remains the same. This is essentially the limit under which you have defined that section. I do not wish to offend you, but this is the way you have interpreted the reasonable limits in a free and democratic society. That is essentially what you had in mind when you drafted that clause.

Senator Fraser is saying that the same principles must be applied in all circumstances. One cannot define a way of applying the principle in one set of polls versus another. It must be consistent with the interpretation that we give to freedom of expression. It is not clear to me yet. I will have to reread it and read Thomson again to ensure that what we are suggesting would meet the test of the court case.

Mr. Peirce: I will move on to third parties. This new third party regime in Part 17 is all of Part 17. It starts at clause 349 and goes to clause 362.

This is a new scheme. First, what is a third party? A third party is a person or a group that conducts election advertising other than a registered party, a candidate, or a local association. Election advertising essentially includes promoting or opposing candidates or parties, including issues associated with candidates and parties. It covers ads on TV, radio, periodicals, billboards, posters, banners and the Internet.

Third parties spending over $500 on election advertising must be registered with the CEO. They will have certain reporting requirements. They must report on contributions over $200 from the previous six months up to the dropping of the writ and during the election period that are directed towards election activities -- election advertising, in effect. If a third party cannot identify which activities are directed towards electoral activities, they must report on all contributions over $200 received during that period. They will also have to report on their expenses for ads used during the election period. If their expenses exceed $5,000, an audited report will be required.

There are then spending limits on election advertising, which I know you have heard a significant amount about already. The national limit is $150,000 for each third party. They can do that either by advertising at the national level on national issues or by their advertising in constituencies at the constituency level.

Senator Joyal: Is that $150,000 at the constituency level?

Mr. Peirce: The $150,000 is the total maximum for all constituencies. For each individual constituency, the limit is $3,000.

The Deputy Chairman: What happens if it is over $5,000?

Mr. Peirce: There is then an audited report.

The Deputy Chairman: Could that be any figure, even $1 million? Is the only requirement an audited report?

Mr. Peirce: No, you need an audited report if you spend over $5,000, but you are limited to the $150,000 national amount.

The Deputy Chairman: That is the limit.

Mr. Peirce: Yes. You cannot spend more than that, regardless of the audited aspect. The $3,000 limit also applies to each by-election.

There are penalties for collusion. The prohibition is in clause 496(2) of the bill. The penalties in clause 500(5) provide a penalty, on summary conviction, of $2,000 or one year in jail or, on indictment, $5,000 or five years in jail. There is also an additional penalty under clause 500(6). Where you exceed or circumvent the spending limits, it can be five times the amount by which you have exceeded the spending limit.

Senator Fraser: Where is the clause on collusion?

Mr. Peirce: The collusion provision itself? I must double-check.

Ms Mondou: It is clause 351.

Mr. Peirce: That will take us into the financial administration regime, and this may be an appropriate place to conclude for today.

The Deputy Chairman: It is now 5:30 p.m. We will continue tomorrow at 10:45 with the minister. I believe you will be here with the minister.

Mr. Peirce: That is correct.

The Deputy Chairman: We will need at least one more hour to finish with you.

Senator Joyal: If our witnesses are returning tomorrow, would it be possible to obtain a chart showing, in summary form, which clauses of the proposals reflect judgments of the court relating to the Charter of Rights?

Mr. Peirce: Absolutely.

The Deputy Chairman: That is a good suggestion. Usually we have documentation, the witnesses speak for about 10 or 15 minutes, and we then ask questions. Today we have used a different procedure, and it has extended our time.

Senator Fraser: Would it also be possible to provide a comparison between the regime set out in this clause, the third party part, and the regime that has been in force in Quebec for some time?

Mr. Peirce: That will take us a little time.

Senator Fraser: I am not asking for something that is very detailed and legalistic, but I would like an outline of how the two regimes work and the main issues that have arisen out of the Quebec experience that might be addressed here. I am not asking you to justify this. I think third party limits are appropriate, but it would be good to have that material.

The Deputy Chairman: Thank you.

The committee adjourned.