Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence for the meeting of April 5, 2000
OTTAWA, Wednesday, April 5, 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 3:48 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: We will now hear further presentations on Bill C-2. To begin with, we have the lawyers from the Privy Council Office.
Senator Fraser: Before the proceedings being, may I raise a very brief point of privilege?
The Chairman: Please do.
Senator Fraser: The senators who were here last time will remember that I had some concern about the bill's reference to the publication of opinion polls. There was a story in The Hill Times this week about my position and the paper did not have the space to give it completely. I should like to reiterate that my position is as I expressed it. I am not concerned about the existence of controls on the way opinion polls might be published but only about the term of time during which those controls would be exercised.
Senator Oliver: A term of time?
Senator Fraser: Yes. I think it is appropriate at the end of the campaign.
Senator Oliver: I understand.
The Chairman: What clause are we on now?
Mr. Michael Peirce, Counsel, Director, Legal Operations, Legislation and House Planning, Privy Council Office: Perhaps we can introduce the materials that we provided.
The Chairman: Please do. This is in response to our questions last time. We have several sets of material here, and I thank you for bringing this to us promptly. It would not have done any good if it had not been prompt.
Mr. Peirce: We start with a provincial comparison of the restrictions on posting election signs. Clause 322 of Bill C-2 authorizes tenants and condominium owners to display election signs on their premises, although landlords may impose reasonable restrictions on conditions of display. In some instances, there are leases that restrict the posting of signs. Clause 322 is to override those leases.
A question came up about a comparison with the Quebec Referendum Act. We looked at all of the electoral legislation and referendum legislation across Canada and we found that there was no equivalent provision in any provincial electoral or referendum legislation. There is no override in the provincial legislation with regard to restrictions on posting signs. Regarding the Quebec situation, I wish to point out that the Quebec Charter of Human Rights and Freedoms has specific provisions on freedom of expression and related provisions that would likely override any restrictions in leases. That act applies to private individuals, unlike the Canadian Charter of Rights and Freedoms. The Quebec act would apply to the private conditions in leases to override them in a Quebec referendum or election.
Next are the provisions of the Canada Elections Act challenged under the Canadian Charter of Rights and Freedoms. I wish to explain briefly the heritage of this chart. I reviewed 476 cases concerning the Canada Elections Act -- that is, challenges to the act or challenges to actions taken under the act. Rather than provide a list of all 476 cases, many of which are redundant because they are on the same issue, we have brought together the key cases and the cases that we are taking into consideration in preparing Bill C-2.
The first four rows on the chart all involve the Figueroa case, which is currently under appeal before the Ontario Court of Appeal. It deals with four separate issues, two of which are specifically dealt with in the new bill and two of which are under appeal. The first one under appeal is the requirement to nominate 50 candidates in order to be recognized as a registered party. As Minister Boudria told you the other day, the court read that down to "two candidates make up a registered party." The second one is party affiliation on the ballot for candidates from a registered party. The court found difficulty with that provision but, because it read down what constitutes a registered party to just two candidates, it did not have to change the actual restriction on party affiliation on the ballot because now two candidates make a party. There was not a problem with party affiliation, then.
Next is liquidation of party assets upon deletion from the registry. When a party did not nominate 50 candidates, they were deregistered and liquidated. We have now changed that provision so that we suspend the party and report on their finances rather than liquidate their finances.
The final one was the reimbursement of a $1,000 nomination deposit. Previously, it was reimbursed under two conditions: $500 if you got 15 per cent of the vote and $500 if you filed the required reports. The court found that requiring 15 per cent of the vote was unconstitutional. That was not appealed, and Bill C-2 now removes that provision and returns the $1,000 deposit simply upon filing of the required reports.
That is the Figueroa case. The other ones will be a little quicker.
Next is inmate voting. An inmate serving a sentence of two or more years is not entitled to vote. That is the Sauvé case. The Federal Court of Appeal upheld the provisions in the act limiting inmate voting. The plaintiffs in the case had sought leave to appeal to the Supreme Court of Canada. We do not have a decision yet on whether or not the Supreme Court will hear the case.
Concerning third party spending limits, there are two cases that have been much discussed already: the Somerville case and the Libman case. We have created a new third-party regime with new spending limits and reporting requirements.
The 72-hour blackout on election polls is next. The old act was struck down by the court in the Thomson Newspapers case. Again, there has been much discussion already of the fact that a new blackout is imposed, but only on polling day, and also a requirement to publish the methodology of the poll.
Next is the blackout on political ads. That was struck down in the Somerville case before the Alberta Court of Appeal, in 1996. The blackout that was struck down was one on candidates and third parties, and that was at the beginning of the campaign and then also in the final 48 hours of the campaign. The ban on political ads at the beginning of the campaign has been removed entirely. A ban is in place only on polling day now, on political ads at the end of the campaign, and it applies to candidates, third parties and registered parties.
The Reform Party case, which has not been discussed here, concerns broadcasting time. In that case, two provisions were found to be unconstitutional: paragraph 319(c) of the old act, which had the effect of prohibiting broadcasters from providing extra time for broadcasts; and section 320, which prohibited broadcasters from charging a fee for any extra time that was provided. Those were found to be unconstitutional. Therefore, those provisions have not been included in Bill C-2.
The final case on your list is Barrette and Payette. It involves a challenge for the reimbursement of 50 per cent of the candidate's election expenses if they receive 15 per cent of the vote. That was upheld by the Quebec Court of Appeal and, therefore, the provision remains in Bill C-2.
In the next chart, we have provided the principal amendments to the Canada Elections Act. At the end of the clause-by-clause book that we have provided, there is a table of concordance between the old act and the new act that indicates all of the changes. As well, for each clause, the change is explained. However, as we indicated to you at the outset of our presentation, while this whole act has been re-organized and rewritten, for substantive changes we are talking about a much smaller number. It is not all 568-odd clauses. Our presentation and Mr. Boudria's presentation touched on the substantive changes, and they are listed here. We will not go through them again, but we will certainly receive questions.
The Chairman: Before you get into the clause-by-clause study, Senator Beaudoin has a short question on this point.
Senator Beaudoin: Concerning the Sauvé case, with regard to the right to vote, I do not understand why we make a distinction between a person who is in jail for more than two years and a person who is in jail for less than two years. A person is sent to jail -- whether for two years or under or over two years -- because that person is guilty of a crime or an infraction. That has absolutely nothing to do with the right to vote.
Clause 3 states that every citizen has the right to vote. I remember the time when a person who was sent to jail lost everything. We called it "mort civile" in the Civil Code of Quebec, so we abolished it. There was a time when judges in Canada could not vote, so we changed that. We were the only country that had that. In France, the United States and Great Britain, judges were able to vote. To people who are in jail, we say, "If you are in for under two years, you may vote; but if your are in for over two years, you cannot vote." I fail to see the logic in that. I raise that question because Bill C-2 does not change anything in that regard.
Mr. Peirce: There are a number of reasons why the line was drawn at two years. I am not sure I can capture them all here. I have indicated that the Federal Court of Appeal accepted the government's justification for that and found the provision to be constitutional.
The two-year cut-off is the cut-off for serving time in a federal rather than a provincial institution. The two-year cut-off -- and this is commensurate with the distinction between federal and provincial institutions -- is also an indication of more severe crimes. Having spent time myself prosecuting crimes, we know that before you get over the two-year threshold we are talking about a much more serious crime. For instance, trafficking in illicit drugs rarely leads to a two-year sentence until a serious pattern is established. Part of the reason for the two-year cut-off has to do with the seriousness of the offence. Part of it has to do with the nature of the institutions and their management. The court recognized the administrative difficulties and the difficulties with managing those institutions. Part of it is simply a recognition that when a person commits a more serious crime, he has, in effect, taken himself out of civil society by committing such a crime; therefore, his participation in the most important aspect of civil society, voting, is withheld in those circumstances.
Senator Beaudoin: The logic is what worries me. When you commit a crime and you are found guilty, you lose your liberty. However, you do not lose your citizenship. You do not lose your house, your car, et cetera. I do not understand the logic. It is one thing to lose liberty; it is another thing to lose the right to vote.
I am optimistic. I think the Supreme Court will probably set that provision aside. I fail to see the logic in it. It has nothing to do with liberty. The right to vote is one thing. You lose your liberty because you are a criminal. I understand that and I agree with it. However, it has absolutely nothing to do with the right to vote.
The Chairman: Senator Beaudoin, that is not a new provision in this bill.
Senator Beaudoin: That is right. However, it is still there.
The Chairman: That is absolutely right.
Mr. Peirce: Madam Chair, I wish to draw your attention to the comparative table of the third-party regime under Bill C-2 versus Quebec electoral law and the Referendum Act. This is in response to a question asked by Senator Fraser.
I wish now to turn to clause 516 of the bill. This clause deals with the injunction power. Essentially, there are three ways of dealing with illegal actions that disrupt the electoral process. The first is by prosecution. That almost certainly would take place after the electoral process. It does not usually solve the problems. In effect, it is an after-the-fact punishment.
The second way is through compliance agreements. Currently, on an informal basis, the commissioner of elections may enter into compliance agreements. To someone who is violating the act, for example, by destroying election signs, the commission of elections might say, "Let's get together and resolve this matter and agree that you will not do it any longer."
The third one is an injunction. It is possible to get an injunction technically at common law. The test that you have to satisfy to get an injunction to stop certain behaviour or to have certain required behaviour under the act is extremely high. You have to show irreparable harm. To my knowledge, it has never succeeded in an election context. Frankly, the injunction power is not tailored for an election context.
I will talk about compliance agreements and injunctions. Clause 516, which is the injunction power, has been tailored to the election context. It states, in part:
If the Commissioner has reasonable grounds to believe that a person has committed, is about to commit or is likely to commit an act or omission that is contrary to this Act, the Commissioner may...
This deals with something that you could not prosecute for in advance, but you might be able to solve the problem now with an injunction power. The commissioner may seek an injunction during the election period. The factors to be taken into consideration in that regard are the nature and seriousness of the act or omission, the need to ensure fairness of the electoral process, and the public interest. It is a weighing of those factors that will lead to a determination first by the commissioner as to whether to pursue an injunction and then by the court as to whether to issue an injunction. As I have said, an injunction could either prohibit persons from doing something or require them to do something that they are required to do under the act.
One example where we might see an injunction being sought is if a candidate or a third party were exceeding the spending limits in the act in such a serious way as to undermine the fairness of the election in a particular riding. Currently, there is nothing you could do about that. Under Bill C-2, the commissioner could seek an injunction under your application. Taking into consideration those factors, there would be a reasonable chance that an injunction would be issued.
Clauses 517 to 521 set out the provisions for compliance agreements, which are less formal than injunctions. We are formally recognizing the power of the Commissioner of Elections to enter into an agreement with an individual to stop violating the act or to do something to ensure compliance with the act. It is similar to an injunction, as I say, but less formal. The individual would be contacted by the Commissioner of Elections, and the commissioner would indicate that the individual has a right to consult legal counsel about whether or not to enter into a compliance agreement.
The effect of entering into a compliance agreement is that any prosecution that is under way will be stayed, or any prospective prosecution will be prevented from being undertaken, as long as the compliance agreement is satisfied. If the compliance agreement is violated, then, indeed, the commissioner can reinstitute the prosecution or institute a prosecution as the case may be. One other key factor here, and I think this is an important detail, is that compliance agreements will be published. They become public so that everyone knows that this person has given an undertaking that they will take whatever steps are required to not violate the act or to ensure compliance with the act.
Senator Murray: I hope I am here when the Chief Electoral Officer is present to explain these intrusive provisions. One wonders what the evils are that we are trying to correct in all this. I will not press you on the point, Mr. Peirce.
Mr. Peirce: I will move to Part 20 of the bill, clauses 522 to 532, pages 231 to 234. This part of the bill deals with contested elections. It replaces the Dominion Controverted Elections Act, which was a separate act that dealt with contested elections. A contested election is where there is a fraud or irregularity that undermines the result of the election. It is different from a recount. The Dominion Controverted Elections Act required referencing back and forth between that act and the Canada Elections Act, so we have brought it into the Canada Elections Act and made it part of the same act. We have clarified the procedures and modernized them to correspond to our modern court system.
Clause 524 at page 232 indicates who can contest an election, and it is any elector who is eligible to vote in an electoral district. It is an elector from within the district, not someone else from a neighbouring riding. Also, any candidate in an electoral district can bring an application to contest an election.
You can contest an election on the basis that the elected candidate was not eligible to be a candidate or that there were irregularities, fraud, or corrupt or illegal practices. You may remember from our earlier presentation that the term "corrupt or illegal practices" is dealt with and defined specifically within the bill. "Fraud" is a term that is defined in the Criminal Code. "Irregularities" is a term that has developed in the jurisprudence under the Dominion Controverted Elections Act, specific to the electoral situation. It may be a situation, for example, where ballot boxes were all found open and there is some question as to the legitimacy of the ballots. That is the kind of irregularity that might be contested.
Next is the timing for contesting an election, clause 527 on page 233. You have 30 days after the day on which the result of the election to be contested is published in the Canada Gazette or 30 days after the day on which the applicant who wants to contest the election first knew or should have known of the irregularity, fraud or corrupt or illegal practice. It is the later of either of those.
A court finding that there has been an irregularity, corrupt or illegal practice or fraud may find the election to be a nullity and will convey that information to the Speaker. Also, of course, if no fraud or irregularity or corrupt or illegal practice has been found, that will be conveyed to the Speaker as well. In the normal process, if there is a fraud and it is a nullity, there will be a by-election -- in essence, a re-election.
The Chairman: Clause 528 simply ensures that you do not get frivolous applications.
Mr. Peirce: That is correct, and also that you do not get a situation where there may be pressure on someone to withdraw their application. The court should make that determination.
Senator Andreychuk: You cannot withdraw your application before the court without leave at the court of first instance. Could you give me another example?
Mr. Peirce: A criminal accusation.
Senator Andreychuk: Other than that?
Mr. Peirce: I do not have one off the top of my head, no.
Senator Andreychuk: You are relying on the criminal law.
Mr. Peirce: We also rely on the existing practice under the Dominion Controverted Elections Act.
Isabelle Mondou, Counsel, Legislation and House Planning, Privy Council Office: A very important provision is also the coming into force provision. It is on page 252, clause 577. This provision specifies that the act will come into force six months after the day on which it is assented to unless the Chief Electoral Officer has published a notice in the Canada Gazette. That deadline is necessary to ensure that the Chief Electoral Officer has the time to make the necessary preparations for the bringing into operation of the act. If he is ready before six months are up, he will give notice.
Senator Cools: There is a standard clause about when a bill will come into effect, but the latter part of the witness's remarks had to do with the Chief Electoral Officer doing something. I am wondering if that part of the clause is standard.
Ms Mondou: That is the practice. In fact, clause 554 of the bill deals with amendments, for example, to punctuation, and those do not come into force immediately. There is also a deadline there to ensure that the necessary preparedness is done by the Chief Electoral Officer. That is the practice for any amendment to the Canada Elections Act.
Senator Cools: That is interesting, because I have never seen a proclamation qualified that way, or perhaps I have just not noticed it.
The Chairman: I think you are probably thinking that most acts come into effect when they are published in the Canada Gazette.
Senator Cools: There is always a clause that says, "This will come into effect six months after Royal Assent," or whatever, but I have never seen or noticed one that is qualified or gives discretion to someone else.
Ms Mondou: The discretion is limited because it cannot exceed six months. He can just do a little faster, but it cannot exceed six months.
Senator Cools: I think that is something we should consider. Perhaps we should look at some of those other clauses in other bills.
Senator Beaudoin: It is a strong discretion.
Senator Oliver: There are many forms to be printed.
Senator Cools: That gives them time to get ready.
The Chairman: Clause 577 states:
... unless, before that time, the Chief Electoral Officer has published a notice in the Canada Gazette that the necessary preparations for the bringing into operation of this Act have been made and that this Act may come into force accordingly.
Senator Cools: The Chief Electoral Officer must be given ample time to prepare. It is a very complex process. It is not a large point and I would not delay anything because of it, but someone should clarify it for us.
The Chairman: We will be having the Chief Electoral Officer before us and we can ask him about that in person.
Senator Beaudoin: Is he coming next week?
The Chairman: Yes; next Monday.
Senator Fraser: I am looking at the sample ballot on page 255. First, I do not understand the difference between the way John Doe is shown on the ballot and is identified as an independent and the way Anne Unetelle is shown without identification. Is that an oversight or is there provision for someone to be presented on a ballot without any identification at all as to their status?
The Chairman: There is provision for that in the bill.
Senator Fraser: What is the distinction between an independent and a person?
Ms Mondou: That is right. That is an example. If you are not from a registered party, then you cannot put your party affiliation and are you not an independent. For example, if you are from the Communist Party, you are not an independent and, because your party is not a registered party, you cannot put Communist Party. Therefore, you will have just your name listed.
Senator Fraser: Where do we set out what marks are admissible when you are voting -- that is, an X or a tick or whatever? I come from a province where this has been an issue.
Mr. Peirce: My colleague will search for the provision. While she does, I will tell a side story to entertain you. The previous act actually referred to marking the ballot with a lead pencil. We know, in fact, that most pencils are not lead anymore. At committee stage, that provision was amended.
Senator Fraser: Clause 151 says "a cross or other mark."
Mr. Peirce: That is on page 63.
Senator Fraser: It does not say "pencil". Were you about to tell us about difficulties with lead pencils?
Mr. Peirce: I was, and now I cannot remember the specific location of that particular reference. We have changed it, too. I believe it says "black pencil" as opposed to "lead pencil." I will search for that to finish the story correctly.
The Chairman: Actually, it says that "the elector shall mark the ballot with a cross or other mark in the circular space opposite the name of the candidate of his or her choice," and so on. I do not believe that it says anywhere "in black." It should not, because most people have blue ballpoint pens.
Mr. Peirce: It is not in relation to marking the ballot. It is a provision that requires you, somewhere in the act, to mark something in lead pencil and we changed it from "lead" to "black pencil."
The Chairman: We are looking at the new one.
Senator Fraser: A further direction is to "mark in the circular space." This is not a frivolous question. What happens if your mark exceeds the border of the circular space? We have had a lot of rejected ballots in Quebec in the past.
Mr. Peirce: It is the call of the election officer as to whether or not it is discernible. If you mark and you go over the edge a little bit, normally you would not have a problem with that and the election officer would accept it. However, if the mark is such that it goes up from one circle to the next circle so that it is called into question, the election officer might not allow that. It might be subject to challenge.
Senator Fraser: Just dribbling off into the margin would not normally constitute a spoilt ballot?
Mr. Peirce: No.
The Chairman: That is why the margin is black and the marking is specified to be black. Theoretically, it should not show but we all know it does.
I have just had it pointed out to me that subclause 138(1), on page 60, states "entirely in ink or entirely in black pencil."
Mr. Peirce: I wish to thank whoever found that.
The Chairman: That is for the deputy returning officer initialling the back of the form.
Mr. Peirce: That is right.
The Chairman: That is the only reference. In other words, anyone who is voting can use a blue ballpoint pen and make any kind of cross or check, or anything they like, as long as it is in the circle and the intention is clear.
Senator Joyal: Yes, but many people have unsteady hands. In marking a ballot within a circle or a space, they can easily go over the black margin because their hand is shaking. That is to say, they can place a mark across the white rectangle where the name of the candidate is printed. If there is a difficult situation where the margin between two candidates is very slim -- that is, a difference of one or two votes -- there is no question that in that case they will rely on the wording of the legislation and, in the present case, in the wording of that proposed section. To leave to the electoral officer of a riding the decision to pronounce on this could come to a variation of interpretation. If we want to maintain in the best condition possible the franchise of someone to vote, I am not sure that the way that this clause is spelled out totally protects the expression of the will of that voter.
Is it the intention of the Chief Electoral Officer to publish a circular that would provide some examples of where a ballot is admissible, or is it left to the 300 electoral officers in each riding to decide for themselves if such a mark is acceptable or how much of a mark on the white rectangular space is admissible?
The Chairman: At this point you may want to answer, but I would also point out to Senator Joyal that we will be hearing from the Chief Electoral Officer next week. I hope we grill him on questions like that.
Mr. Peirce: I will give two brief answers. The Chief Electoral Officer is the appropriate person otherwise.
First, you can have assistance voting. A person in that situation may well want to seek assistance. I will not belabour that because we know that in some circumstances an individual may not want to seek assistance, so that may not solve the problem.
Second, there is the possibility of a judicial assessment through a contested election. It may be first through a recount. Also, through a contested election, it could constitute an irregularity. Ultimately, it would fall to a judge to determine the matter. A more practical solution, however, is to ask the Chief Electoral Officer about the practice of Elections Canada.
Senator Oliver: There is in fact a body of common law that sets forth certain marks that are acceptable as a result of several contested elections. You can read them. There are all kinds of marks other than a clear X that have been ruled to be acceptable on many occasions.
Mr. Peirce: Exactly.
Senator Oliver: I should like to ask a question about the chart that you handed out today entitled, "Provisions of the Canada Elections Act Challenged Under the Charter of Rights and Freedoms." First, I am curious about why you did not refer to the Roach case when you referred to the Libman case and the Somerville case. Second, I am interested in the wording you used in the "status" column regarding the Libman and Somerville cases. You state:
Government did not appeal decision. Therefore, Bill C-2 would impose new third-party spending limits.
It was not the limit that was the basis of the appeal; it was whether or not it was constitutional. What does "Therefore, Bill C-2 would impose new...limits" mean?
Mr. Peirce: The $1,000 limit was struck down. Thus, there are now new limits. The $1,000 limit has not been continued; the issue had to be revisited. Do we leave it with no limits or do we institute a new limit other than the $1,000 one that was struck down by the court in Somerville?
I am sorry, senator. I missed your first question. Was it about vouching?
Senator Oliver: I was asking about the Roach case. It preceded Somerville, which was the leading case on third parties.
Mr. Peirce: We did not list all of the cases that lead up to that. That is similar to the Sauvé case because, as you will know, there are a number of inmate voting cases. Sauvé, the one referred to here, is simply the most recent.
Senator Oliver: Did you have some constitutional research done to determine whether or not the limits set out in clauses 349 to 362 will withstand a constitutional challenge? If so, can you present that to us so that we can have the benefit of the advice you received?
Mr. Peirce: I can give you the conclusion of the advice we sought. The conclusion was that limits will withstand a Charter challenge.
Senator Oliver: What is the reasoning and what is the authority for that?
Mr. Peirce: The Somerville case, as you know, struck down the $1,000 limit, finding that there was no pressing and substantial objective for third-party spending limits. The Supreme Court of Canada in the Libman case found that there was a pressing and substantial objective served by third-party spending limits. The court went further and made some rather strong statements, specifically stating that the Somerville decision was incorrect. It left open the possibility that, perhaps, even the $1,000 limit may have been acceptable. Nevertheless, it was determined that a more generous limit would be appropriate and the $150,000 spending limit has been provided. That essentially served as the basis for our assessment.
We looked at the issue carefully, including various studies that have been done, after which a decision was taken. It was not a decision I took. Therefore, I am not at liberty to go beyond that.
Senator Oliver: Can you not give us any more background and judicial authority for the conclusions reached that are reflected in clauses 349 to 362 in relation to third parties?
Mr. Peirce: We had the rather strong authority of the Libman decision, which was not exclusive in this regard.
Senator Oliver: That is not the Supreme Court of Canada decision, is it?
Mr. Peirce: Yes, it is, where it was reviewing the Quebec Referendum Act. Specifically, it directed its comments at the Canada Elections Act in its commentary on the constitutionality of third-party spending limits.
Senator Oliver: Have you given some thought to the rights of members of Parliament to issue receipts for contributions between elections?
Ms Mondou: As you know, Bill C-2 is based largely on the recommendations of the Standing Committee on Procedure and House Affairs that reviewed the previous study of the Lortie commission, as well as two reports of the Chief Electoral Officer. In none of those documents was there a recommendation to that effect. Thus, it is not in Bill C-2.
Senator Oliver: Have you had any representations from members suggesting it would be convenient to have same?
Ms Mondou: No.
Senator Oliver: None whatsoever?
Ms Mondou: None whatsoever.
Senator Murray: Madam Chairman, first, I have two apologies to make. I was not here for previous meetings on this bill. If you find that I am thrashing over ground that has already been discussed --
The Chairman: I will stop you, Senator Murray.
Senator Murray: Please do, Madam Chairman.
My second apology has to do with the fact the standing committee of which I am chairman, the National Finance Committee, is meeting later today. Thus, I will not be able to stay with this committee until the end of its deliberations this evening. I apologize in advance for that.
There are two matters that I will simply flag and raise again when Mr. Kingsley is with us. The first has to do with clause 18.1, which states:
The Chief Electoral Officer may carry out studies on voting, including studies respecting alternative voting means, and may devise and test an electronic voting process for future use in a general election or a by-election. Such a 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.
Has that been gone over yet in this committee?
The Chairman: There has been some discussion of it, but please carry on.
Senator Murray: Perhaps I should just flag it and return to it when Mr. Kingsley is here.
The Chairman: I should point out that the question was asked of the minister when he was here. It was asked by Senator Joyal. It was answered, to a certain degree.
Senator Murray: Were you satisfied with the reply, senator?
Senator Joyal: I think each one of us can read the minutes and draw his or her own conclusion and act accordingly.
Senator Murray: I wonder about the safeguards that will be put in place for testing such a process in an actual election. As usual, I find it a little irritating that the prior approval that is required is that of the House of Commons. I do not subscribe to the notion that was put forward in the Senate by one of my distinguished colleagues a few years ago that if there is any matter on which the Senate should defer to the House of Commons it is matters such as election law. On the contrary, I think that we have to beware of the self-interest that is always in place among honourable members in that place, and that we should be quite alert, and even skeptical, in dealing with legislation from that place on this subject.
Let me turn now to clause 91. Again, I will discuss it with Mr. Kingsley, but perhaps Mr. Peirce can help us. It states:
No person shall, with the intention of affecting the results of an election, make or publish any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate.
Has that provision been canvassed?
Senator Moore: It was the last time we met.
Senator Murray: Can you tell me, sir, what evil this clause is designed to correct? What in our electoral experience in this country indicates that we need this provision? Do you know what the background of it is?
Mr. Peirce: This is a longstanding provision. It was section 264 in the previous act. I am not aware of a specific evil that is before us about which we are concerned -- a looming threat, as it were. However, there is, I think, a good argument to be made that if somebody makes a false statement of fact about the personal character or conduct of a candidate, with the intention of affecting --
Senator Murray: Everything a candidate and his supporters say in an election campaign is intended to affect the outcome. That is what campaigns are about.
Mr. Peirce: It is not just with the intention of affecting the outcome, it is to affect the outcome by making a false statement. That is a rather high standard.
Senator Murray: Has section 264 ever been invoked?
Mr. Peirce: I cannot tell you off the top of my head; I am sorry.
Senator Moore: Madam Chair, in our last meeting I spoke about a series of billboards that had been posted in targeted ridings across the country by the Association of Chiefs of Police. They were vicious. They were, I would say, character assassinating. They were not true. I think that is the type of thing that this section is meant to remove. It is meant to provide an opportunity for candidates of all parties to have a sense of fairness. I do not know that I have ever seen anything as bad as that in the past, and I have been involved in a number of campaigns. I had never seen it done candidate to candidate. That was a third-party initiative. I can think of one situation in Nova Scotia where the Liberal candidate ended up hiring a lawyer, going to court, and seeking an injunction to have the billboard removed.
Senator Murray: What happened?
Senator Moore: She was successful but she had to leave her campaign and, at her expense, bring criminal action against the person or persons.
The Chairman: Perhaps we can ask the witnesses what the penalties are on this and where we find them. "No person shall" means penalties.
Mr. Peirce: There is a penalty. There are two other steps that could be taken, and Senator Moore referred to one of them. One step is an injunction. As I explained, we have tailored that injunction power to the electoral process. The other step is a compliance agreement. It would be possible to enter into a compliance agreement. You establish the grounds for prosecution. You say, "Take down the signs or else we are going to prosecute." There are steps that you could take during the electoral period. Prosecution, as you know, would ultimately take effect only after the electoral period.
Clause 486(3)(a) creates the offence, and the punishment is in clause 500(5).
Senator Murray: I wonder about that provision. I wonder whether, under that provision, people running would be seeking to invoke that clause because things had been said. On the date that the 1988 election was called, Sheila Copps went before the nation's media and said, "The Prime Minister is a crook." If someone in the ordinary course of events said that about you or about any citizen, you would have recourse under the libel and slander laws of the country.
Senator Moore: Was that in or out of the House, senator?
Senator Murray: That was outside of the House, under a media scrum of some kind. I remember it vividly. What are you going to do about it? Should we have brought a charge against Ms Copps for making a statement like that? Most of the rhetoric is reasonably civilized, but there are people accusing each other of lying.
The Chairman: Senator Murray, perhaps I could just interject at this point. Since this clause was in the previous bill, it obviously has not been terribly effective. We may well want to ask the Chief Electoral Officer when he comes before us if he intends to do something to make it more effective.
Senator Fraser: Still on this point, I assume that honest error is a defence here.
Mr. Peirce: Absolutely.
Senator Murray: Do you think Ms Copps could invoke that?
Senator Fraser: I was thinking of the media.
Senator Murray: Of course.
The Chairman: If there are no further questions of our witnesses, I thank them very much for coming before us.
We will now hear from Mr. Terry Mercer, National Director of the Liberal Party of Canada, and Louis-Philippe Bourgeois, Deputy Director General of the Bloc Québécois. While they are taking their seats and we are getting the grand shuffle done at the end of the table, I would point out to senators that this next set of witnesses includes representatives of the registered political party organizations that currently have members sitting in the House. Before we begin, I would emphasize to senators that these witnesses are here as representatives of the party organizations that function outside the House of Commons. One of the witnesses we are expecting to appear before us is from the Canadian Reform Conservative Alliance, Mr. Ted White, who is a Member of Parliament. The people who are before us in the next panel are here to share with us the view of their party organizations on Bill C-2 and to help us understand how it will affect the registered parties, if adopted. We are not talking the political side of this; we are talking the nuts and bolts of running an election.
Gentlemen, if you have decided who will go first, please proceed.
[Translation]
Mr. Louis-Philippe Bourgeois, Deputy Director General, Bloc Québécois: I would like to begin by thanking the members of the committee for allowing the political parties to once again present their views on Bill C-2, that amends the Canada Elections Act. The Bloc Québécois and the other political parties were perfectly entitled to expect an in-depth revision of the Elections Act upon the tabling of this bill. However, instead of taking advantage of this opportunity to bring substantive changes to the Act, the Liberal government chose rather to launch a little doctoring operation: technical changes were made, the act's presentation was modified, but it nevertheless remains that we cannot talk about a real reform that would have had true meaning in this, the beginning of the new millennium.
The Bloc Québécois has of course studied the bill in its entirety, but three issues in particular drew its attention: the funding of political parties, the representation of women in the House of Commons and the appointment of electoral officers.
You are certainly aware of the fact that since its creation, the Bloc Québécois has been waging a battle about the funding of political parties. Bloc Québécois members have countless times defended and promoted the idea of democratic funding in their discussions with members of the other federal parties. This idea is continuing the make progress, but the liberal government still rejects the idea of legislative changes that would lead to the democratization of political party funding.
I would now like to give you a few examples of initiatives taken by the Bloc Québécois relating to democratic funding. On March 18, 1994, the member for Richelieu, Louis Plamondon, sponsored a motion taking up the principles of the Quebec Democratic Funding Act debated under members' affairs. During the debate on Bill C-63, the Bloc tabled amendments pertaining to the funding of political parties. These amendments were defeated. The Bloc, in the wake of the Corbeil case, once again tabled in the House of Commons an unequivocal position on political party financing. This motion read as follows:
That the House condemn the attitude of the government that is refusing to proceed with an in-depth review of the legislation on federal political party financing that leaves room for abuses of all kinds.
The motion was defeated by the government even though all of the other parties voted in favour of it. In the opinion of the Bloc Québécois, the democratic financing of political parties would certainly allow for greater democratization of the Canadian electoral system and the achievement of an objective espoused by both the political parties and the Chief Electoral Officer of Canada and the realization of which all voters are in our opinion entitled to expect.
The Bloc Québécois' position is clear and any reform of political party funding should encompass the principal objectives of the Quebec legislation in the area of democratic financing, namely the limitation of contributions a voter is entitled to make to a political party.
As I stated at the outset, the Bloc Québécois is also concerned by the representation of women within Canada's Parliament. In this regard, Madam Caroline St-Hilaire, the Bloc member for Longueuil, tabled Bill C-497, an act amending the Canada Elections Act, on April 22, 1999. It was in our opinion of the utmost importance to write into the Elections Act measures aimed at fostering and increasing the presence of women as candidates and as elected members of the House of Commons. Active and non-coercive measures, such as the reimbursement of a percentage of the expenditures of political parties having reached the set targets regarding the number of women elected, would in our view be a possible solution. Certain countries set ambitious targets for themselves and have reached them or are on the verge of doing so. It is essential that our electoral system be at the forefront as far as the representation of women in the political arena is concerned.
One of the main concerns of the Chief Electoral Officer is the public's "right to know". This concern is, I believe, shared by all political parties, and the Bloc Québécois sees this as critical for the proper unfolding of a campaign. The information the public needs should only be held or supplied by persons perceived as impartial, whether or not this is justified. The Elections Act, and in particular Bill C-2, should adequately reflect this concern, especially with regard to the appointment of electoral officers who represent the Chief Electoral Officers in each of the ridings.
The method used for appointing returning officers appears to us to be in complete contradiction with the impartiality required of persons filling these positions. Why is the selection of returning officers not done by open competition rather than via political appointment as provided for in the present act and in Bill C-2? Need I remind you that these individuals must in turn appoint others to assist them in the carrying out of their duties, and that they too must be totally impartial.
The 35th report of the Chief Electoral Officer contains a relevant statement in this regard, flowing from the Royal Commission on Electoral Reform and Party Financing, and I quote:
In a democratic system, it is essential that the electoral process be administered with efficiency and the Elections Act applied with impartiality. Election staff must be independent from the government of the day and free from any partisan influence.
Needless to remind you that the opposition parties were in agreement with a change to the appointment process used in the case of returning officers. The Bloc of course studied and tabled amendments relating to many other aspects of Bill C-2. Here are a few examples of such changes that I would perhaps qualify as technical in nature.
During the study in committee of Bill C-2, we looked at the trust funds, the annual reports and the elections reports that should still be reviewed given that there is not sufficient detail in the Elections Act. The list of electors could provide non-confidential and useful information to certain election officers, for example the date of birth of voters, which would facilitate the identification of voters for election campaign purposes. In our view, the act should go further as far as place of residence and proof of residence are concerned, because the requirements in this area remain vague in the Elections Act. The determination and delimitation of polling divisions should provide for a maximum number of voters and not a minimum number, which would facilitate the exercise of voters' democratic rights on voting day and would determine the work of election officers.
The Bloc, in the context of the work of the advisory committee to the Chief Electoral Officer or of its own representations, has suggested various forward-looking paths into the 21st century.
The bill is silent on innovations such as the introduction of some form of proportional representation or electronic voting. These are but a few reasons why it appears evident to us that the tabling of this bill, though born from the obligation to revise the Elections Act is not supported by a true will to bring any in-depth reform.
[English]
The Chairman: If senators agree, we will leave questions until we have heard from the three members of the panel who are here today. We have been joined by Ted White, Member of Parliament of the Canadian Reform Conservative Alliance. Mr. Mercer, please proceed.
Mr. Terrence M. Mercer, National Director, Liberal Party of Canada: First, I wish to thank the committee for inviting me here today. It is good to see friendly faces on both sides of the table. My comments will be much shorter because I do not have as many difficulties with the bill as does my colleague from the Bloc Québécois.
One of the most interesting parts of the process has been the process itself that brought us here today. Some of the discussion started a number of years ago in the other House with respect to amending the Canada Elections Act.
I am a practical politician, not a lawyer. I will not split hairs on the law. I am a guy who runs elections on an ongoing basis. Although we work against each other during the campaign period, we must work together to make the system better. I think that has happened. One of the positive things that have come out of this process is the re-establishment of the ad hoc committee to advise the Chief Electoral Officer. That committee consists of members of all the registered political parties. We meet now on a quarterly basis with Mr. Kingsley, whom I wish to complement for reconvening that committee and for extending funds to those parties who need the funding to have people come to Ottawa for those quarterly meetings. It is very important for those parties who do not have representation in Parliament and that is a positive gesture on his part.
I disagree with my colleague that some worthwhile changes were not made. The issue that addressed revealing the ownership of numbered companies and the CEOs of those companies is very significant. The bill opens the door a little wider and allows political candidates and/or their representatives access to condominiums and other multiple-dwelling buildings. That is very significant. There is also a reference to the identification of dwellings, for example, for women who are living in shelters for abused women and who need to be excluded from that stipulation. There also must be some justification given to the returning officer.
I am fairly happy with the bill. Consequently, I did not come with a list of criticisms. I am happy to answer any questions that you or your colleagues may have.
Mr. Ted White, Member of Parliament, Canadian Reform Conservative Alliance: I should like to apologize for my lateness. Unfortunately, sometimes there are emergencies.
I should like to start with a quick summary of some of the amendments that were proposed by the Canadian Alliance -- or Reform as it was called when the bill was going through the House -- which will highlight some of the concerns that we had with the bill.
First, we wanted to amend the bill so that appointment of the Chief Electoral Officer was a by a resolution supported by 75 per cent of the House instead of the simple majority that is there at present. That amendment would force the government of the day to consult with other parties to ensure that there was a general agreement that the Chief Electoral Officer being appointed was acceptable to all of the parties.
We would also allow the Chief Electoral Officer to employ returning officers on the basis of merit. As my colleague from the Bloc mentioned, we feel that it is inappropriate in a modern Canada Elections Act to have patronage appointments to those positions. We would also require returning officers to select assistant returning officers, deputy returning officers and poll clerks on the basis of merit, as determined through competitions that are publicly advertised and open to all Canadians.
We would delete the requirement for a party to run 50 candidates in order to get its name on the ballot and would use the number 12 in its place. That would allow voters to make free and informed choices from among a greater number of party options, and would also ensure that voters could properly identify that a candidate appearing as an independent was in fact related by party affiliation to some other person on some other ballot somewhere else in the country.
In the interests of giving information to the voters, we felt that they should be able to know if there is a link between a candidate on a ballot here and another candidate in some other part of the country.
We would delete the restrictions on third-party spending. We believe that all Canadians should enjoy the same right to express themselves during election campaigns that is presently enjoyed by the media and political parties. It would also help to ensure that political parties and candidates pay more attention to the majority will of voters on a range of critical issues, thereby establishing an extra level of accountability.
We would require that by-elections be held within six months of vacancies arising in the House. That would reduce the government's ability to time by-elections according to political circumstances, and it would also give voters more assurance as to when they would get a replacement in the event of the death or disappearance or resignation of their member.
Just turning to a few general points, it was our feeling when Bill C-2 was introduced that we should be looking for a bill that was politically neutral and supported by the public, the Chief Electoral Officer and all of the parties in the House. I think that a bill that met those requirements would make a very good Canada Elections Act. In fact, the bill was subject to tremendous criticism from all of the opposition parties and the Chief Electoral Officer and the public themselves. We do not believe that it met the test. The failure of the government to accept amendments that would have made it more palatable, we believe, leaves you with a duty to examine those concerns to see if there is something you need to do.
We believe that the rights of electors and third-party participants in the democratic process continue to be frustrated by provisions in this bill that adopt a paternalistic role in terms of dictating how money can be spent and presuming to decide for electors where the candidates are frivolous.
The government also ignored several decisions of various appeal courts and the Supreme Court of Canada. In addition, it refused to hold committee hearings in cities across Canada, even though there were requests for this from academics and members of the public.
As mentioned, the patronage appointments run right down through the Elections Canada structure. The Chief Electoral Officer said during committee hearings that it is critical, and he used that word several times, critical, that he be given the power to hire returning officers based on merit. On all three occasions that he appeared before the committee, he raised that issue. He also said that, ideally, he would like to adopt the provisions contained in a private member's bill that was put forward by myself as the Reform critic at the time. That bill would have eliminated all of the patronage positions from Elections Canada. The Province of Quebec already has a system of merit selection. There is no reason why the country as a whole should not have that same system in place. In addition to mentioning that it was critical for him to have that power, the Chief Electoral Officer in committee said, and I will use his exact words:
... obviously when I go out on the international scene I do not recommend that the Canadian system be emulated where it comes to the appointment of returning officers. I clearly indicate, as I do in Canada, that the appointment of returning officers under the present system is an anachronism.
Turning now briefly to third-party spending limits, the government used the Libman v. Quebec Supreme Court decision as its reason for re-introducing third party spending limits. It argued that, because the court had ruled that reasonable spending limits were both constitutional and desirable, it was okay to reintroduce them. The Supreme Court decision, though, is in conflict with two separate decisions of the courts in Alberta and a decision of the B.C. Supreme Court of February 9 of this year, which struck down third party spending limits as unconstitutional. The Supreme Court issued an opinion in the case of the Alberta rulings, but it actually never heard any evidence. Therefore, there is no guarantee at all that the Supreme Court would not reach a different decision if and when it came time for them to consider it.
For example, the main evidence in the Libman case was based on the Lortie report, which was based on a preliminary report by Richard Johnston, a political science professor from The University of British Columbia, in which he indicated that third-party spending might influence election outcomes. However, subsequent to the Lortie report, Professor Johnston reached his final conclusions. They were printed in a book in 1992 called Letting the People Decide: Dynamics of a Canadian Election, in which he stated that third-party endorsements have no discernible effect on election outcomes. There is a very critical difference there.
In his ruling in the B.C. case on February 9 of this year, Justice Brenner stated that there is no evidence that would allow him to conclude that third-party advertising or spending has an impact on voter intentions and that, to override Charter rights, it is necessary that there be more than a general hypothetical concern about a problem when there is no evidence that it has existed in the past or is likely to exist in the future.
Those are some of the reasons we took the position as Official Opposition that third-party spending rules should never have been introduced.
In terms of the requirements for registered party status, in March 1999 an Ontario court struck down the sections of the Canada Elections Act that require a party to run 50 candidates in an election to remain on the register and to have its candidates registered on the ballot. The court indicated that two candidates would be sufficient. It is interesting that when the small parties came before committee, all of them indicated that 12 candidates would be acceptable to them. They were not going to insist on the two-candidate ruling of the court.
It is a shame, as far as the Official Opposition is concerned, that the government did not spend more time consulting with and talking to the smaller parties, because we believe that they could have reached a compromise, agreed upon the number 12, and thereby eliminated the likelihood of a further challenge to the reintroduction of the 50-candidate rule. Certainly, the small parties have indicated that they will once again challenge that. They will take it all the way to the Supreme Court of Canada. It is a shame that the government did not spend a little time consulting.
They made the same mistake with the newspapers or the media representatives. There were no consultations with the media before reinstatement of the ban on the publication of polls. The government reinstated a publication on the ban of polls for a 24-hour period prior to the vote, but the B.C. court again has just struck down the B.C. Elections Act provisions that placed a similar ban on the publication of polls. That was also in February. It also struck down the requirement that there be any publication of methodology. The judge ruled that, similar to the case for third-party advertising, there is no evidence to support any contention that a publication of polls in the time leading up to the vote or the publication of methodology in any way influences the vote. I suspect that that one will be going all the way to the Supreme Court as well.
One last thing that we raised objection to was the lack of the requirement for voter identification in the present act. The present act only requires a person to swear an oath that he or she is entitled to vote. We believe that it would have been more appropriate to require proper identification during the voting process.
Finally, we felt that the $1,000 deposit for a candidate to run, considering that it is now fully refundable, should have been lowered to about $250 to facilitate the participation of smaller parties. The country I originally came from, New Zealand, recently introduced MMP, Mixed Member Proportional. They have up to 32 candidates on the ballot now, and voters seem to be quite capable of discerning which candidates are frivolous and which are not. We feel it is improper for the government to try to impede the ability of candidates to get on the ballot. I thank you for your time today.
Paul Lepsoe, Legal Counsel, Progressive Conservative Party: I appear on behalf of the Progressive Conservative Party and have acted for a number of years as the party's volunteer legal counsel -- I stress volunteer legal counsel -- on election law matters.
I have a few brief comments to make this afternoon. First, I wish to talk about what in our view is the flawed process that led to this bill, which has had certain repercussions, and, second, about the third-party advertising provisions. I will not say much in that respect, as Mr. White has said a great deal about them.
The process that led to this bill is flawed. That is the position that the Progressive Conservative Party took in the House of Commons. There was no consultation with the political parties. Under previous Liberal and Conservative governments, there was an all-party approach to electoral reform. Instead of that, the current government has treated the Elections Act as it would treat any other act. That is to say, government officials draft a bill without consultation about specific provisions, and the government introduces the bill; subsequent amendments to the bill, and the very bill itself, are matters of government policy, and the bill must be passed according to the timetable of the government. That is the way a standard bill is introduced and passed, but that has not been the practice in the past -- at least not in the recent past -- with respect to the Elections Act, and it was not the proper way to proceed.
It is our view that there should have been an all-party approach from the outset, but there was not. Instead, we have here, for the first time in decades, a wholesale rewriting of the Elections Act, from A to Z, that was rushed through the House of Commons under time allocation. The parties only had a few days to appear before the House committee. In our view, it should not have happened that way.
Why the rush? What was the hurry?
In many ways, from a technical perspective, there is not much new in this bill. Most of the changes to the present law are minor, but, as I said, the whole Elections Act is rewritten with this bill and, frankly, that makes it difficult for those of us who must work with the details and find and analyze all the minor changes that may or may not be in it. Admittedly, that is a problem for only a few of us, but, while many of these minor changes appear to be positive, there was hardly a pressing need for them.
The only thing that appears to be driving the government's agenda is their wish to have enacted, before a possible fall election, what is one of the few substantive provisions, namely, the severe regulation of third-party advertising. There appears to be no other pressing policy issue that is addressed in this bill.
As this committee deliberates this issue of third-party advertising -- and, I apologize if I am repeating a couple of points that Mr. White may have made -- the issue is not about, in theory, whether or not third-party advertising should be controlled in some sort of ideal world of public policy. The issue is the regulation of third-party advertising that is contained in this bill. In our view, the definition of what constitutes election advertising by third parties is too broad, the limits on spending are too low, and the regulation of third-party groups is too intrusive.
I wish to be frank and honest here. I have had to deal with the minutia of election law in the middle of an election -- that is, with volunteers and with other people phoning in to party offices to ask what was happening. The definition of "election advertising" contained in clause 319 of this bill, and carried over into the third-party advertising provisions in clauses 349 to 362, is a real sleeping dog. The key words are contained in lines 7 through 10 of the bill, where the definition of "election advertising" includes "one that takes a position on an issue with which a registered party or candidate is associated." That is a much larger definition of "election advertising" than we have traditionally used in the past.
Previously, in an election context, it has been only advertising that directly promotes or opposes a particular candidate or party. So this is a greatly enlarged definition. We could characterize this as "issue advertising," which has never been regulated in Canadian elections. That definition is potentially so broad that any group that says anything about any issue in an election campaign may find allegations that they are subject to the regulatory regime of Elections Canada for third-party groups, which is contained in clauses 349 to 362.
I do not know if the committee has had an opportunity to address, with the officials who appeared here earlier, the principle of law that legislation does not bind the Crown unless there is specific wording to that effect. It appears that issue advertising may be conducted freely by the Government of Canada during an election, which would not be subject to any controls by this bill. This may be an effective way for the government to try to shut down some criticism or promote its own position during an election campaign. I leave it to this committee to determine whether these controls are justifiable, necessary or constitutional.
People can have different views about the adequacy or propriety of controlling third-party advertising in general. Some of the senators around this table may have a different view about third-party advertising in general. However, what is before the committee is this bill.A lot of small groups, in particular -- that is, not big business groups but small environmental groups <#0107> will be surprised to know that they will to be subject to quite detailed reporting requirements with Elections Canada.
I will not take up any more of the committee's time, other than to say that we tried to present a number of technical amendments to the bill in the time that was available before committee, and I would be pleased to discuss the more technical issues in the roundtable discussion.
Senator Fraser: My observations relate to remarks made by both Mr. White and Mr. Lepsoe. Mr. White, if you look more closely at the electoral system in Quebec, you will find that the merit principle is not the only guiding way in which electoral officers are appointed there, despite recommendations to that effect.
Concerning third-party advertising, I speak as someone who has almost never supported anything that a Parti Québécois government has done. However, I think this is one of the finest precedents that has ever been set in Canadian election law, in particular, as defined in the Libman case. The controls on third-party spending are a vital component of the democratic process and they have worked very well in Quebec, if you examine that situation.
I am interested in the provisions regarding publication of opinion polls. I should like each of you to tell me if you are aware of any specific case -- and, I am not talking now so much about principle or general concerns or fears -- of a problem or an evil that would have been remedied had this provision been in effect. That is to say, the requirement for the detailed technical information to be published about any opinion survey that is published during an election campaign.
Mr. White: I will make one more comment on the Libman decision. That was a referendum process that was being ruled upon, and just involved a "yes" or "no" answer. I think most people would agree, and perhaps even Judge Brenner might agree, that there would be reasons for government to control the amount spent on each side.
With an election, where multiple issues are at stake, it is not such a clear decision. You may have somewhere a copy of the British Columbia decision from February 9, 2000. That judgment is very detailed and I will not repeat it here.
Moving on to the second part of your question, I will read a sentence out of Judge Brenner's decision regarding the publication of polls:
There is no history of false or misleading election opinion surveys being published. There is no evidence that any individual has encountered any difficulty in obtaining methodological information from the sponsoring media outlet. ...very few individuals are in fact interested in obtaining further methodological information beyond the customary information routinely provided by the media.
He concluded that there is no pressing and substantial need that would justify overriding section 2(b) of the Charter of Rights.
I have not done an extensive investigation that would compare with the evidence that was received in the B.C. court case, but I believe that Justice Brenner reached the right conclusion.
Senator Fraser: Anybody else?
[Translation]
Mr. Bourgeois: I will not come back to the issue of third party advertising because I believe that the Quebec legislation is exemplary. As far as opinion polls are concerned, something new has appeared since the last election campaign and this could be a problem. I am referring to polls posted on the Internet, over which there is no control whatsoever. Should we try to control this in some way, should we establish standards as far as the publishing of the polling results are concerned? A poll held in Sweden could appear on the Internet the day before an election in Canada. The situation becomes very complex. The methods used for polls elsewhere might be very different from the ones followed here in Canada; the principles and seriousness with which polls are done can be very different from what we have here in Canada. That is the only question I have in that regard. I do not see any other problems.
[English]
Senator Fraser: Are there others?
Mr. Mercer: Just an observation, senator. If Senator Moore and I had some time to think about it, we could probably come up with a case that involved Senator Buchanan.
Senator Buchanan: I am listening.
Mr. Mercer: Just testing.
I find it interesting that Mr. White wants 75 per cent of the members of the House of Commons to approve the Chief Electoral Officer, 66 and a third per cent to break up the Reform Party, but only 50 per cent plus one to break up the country. I find some inconsistency there.
The Chairman: Mr. Mercer, we are not making political comments. We are talking about this bill.
Senator Oliver: My question is for Mr. Mercer. I am asking you the question because you introduced yourself as someone who is a sort of functionary; you just run elections and so on. You also are in favour of this bill as it is.
Some Canadians are a bit sceptical about politicians and the way elections are run. One basis of the skepticism is what I call political money: the way money from contributions is gathered, collected, spent and controlled. First, would you agree with me that more transparency and more accountability in what I call "election money" might tend to overcome or alleviate some of the concerns that Canadians have about the political process? If you do agree that transparency and accountability are helpful in relation to political money, have you anything to say about whether Bill C-2 has enough controls regarding the gathering, collecting and receipting of money from small constituencies? For example, say a contribution of $100 is made today and we must account for that money three or four years from now; is this act adequate to give the accountability that Canadians are entitled to? Do you understand my question?
Mr. Mercer: I do understand your question. I am in favour of transparency. I believe there is transparency in the present circumstances, in the fact that we have to report all money raised and all money spent. The Liberal Party of Canada has led the way in opening its books. It has filed extensively, much more so than the other parties have; it did so in both the 1993 and 1997 campaigns, and will continue to do so.
The collection of money is something that is vitally important to all political parties. It is how we survive. It is very important that the system be open and transparent. As the act is structured now, I believe it is. I am quite satisfied with it.
Senator Oliver: Regarding the granting of receipts, if someone issued a cheque to one of your candidates today, could the candidate issue a receipt for that money?
Mr. Mercer: Not today.
Senator Oliver: Should they not be able to?
Mr. Mercer: No.
Senator Oliver: Why is that?
Mr. Mercer: In any political party, assuming you take the four major political parties running candidates in all provinces, and colleagues in the Bloc who run candidates in 75 ridings in Quebec, and with reference to my friend Paul here, who is a volunteer, you have volunteers doing these jobs.
Senator Oliver: I was a volunteer. I did his job for 16 years.
Mr. Mercer: I have been a volunteer for many years and you and I have been on opposite sides of the table as volunteers in Nova Scotia many times.
However, the important thing is, this does not show disrespect for volunteers. It shows the necessity to help protect volunteers from making mistakes, realizing that there is a need for some professionalism in how the funds are collected and accounted for so that the process is properly followed.
I do not think we can rely on volunteers in 301 ridings across the country to follow the rules perfectly. We have professional staffs at the national offices of the political parties to ensure that the process is followed and that the transparency is maintained. We would have a fair amount of trouble if we allowed every candidate to issue receipts between elections. In our party, we maintain control of the receipting process at the central office. That is probably the situation in at least one other national party. We are going to continue to do that, because it helps to alleviate problems or avoid problems that we might encounter. Quite frankly, we want to avoid the problems. We want to make sure things are done in an open, honest and transparent manner.
Senator Oliver: Mr. Lepsoe, you said that your main concerns in Bill C-2 are with the provisions from 349 to 362 relating to third parties and third-party advertising, and there are two main concerns that trouble you. First, the definition is too broad, and you gave us a description of what you meant by that, and, second, it is too intrusive. When you use your word "intrusive," and you read the Libman case, can you explain how you can possibly say it is too intrusive, so that we can have more and more explanations?
Mr. Lepsoe: Just to be clear on this, as an Elections Act kind of flunky, I guess I could be concerned about all sorts of minor technical things. Regarding the broader public policy concerns, this was a particular issue that the Progressive Conservative Party addressed before the House committee, and I am repeating those concerns here today.
The intrusiveness comes from the regulatory regime provided in clauses 353 to 360. This is a miniature version of the financial regulation and oversight to which a political party is subject, including the appointment of an auditor and the submission of financial reports, and so on.
I will give you a small example. I am not saying that this is an important example by any means, but in clause 354 there is a provision concerning who cannot act as a financial agent, and in clause 355 there is a provision about who cannot act as an auditor. As I understand it, the national accounting firms take the position that, if they act as the auditor for a national political party, then no one who works for those firms anywhere across Canada can act as an auditor for a candidate. By extension, any group across the country that goes to a national accounting firm that acts for the national parties will be told, "We cannot act for you."
One of the few amendments accepted by the government is a technical amendment that is now contained in clause 85.1. It was inserted at committee stage and is found on page 40 of the bill. It states:
85.1 Subject to sections 84 and 85, a person may be appointed as official agent or auditor for a candidate notwithstanding that the person is a member of a partnership that has been appointed as an auditor...for
(a) a candidate...or
(b) a registered party.
That sort of technical problem was addressed in clause 85.1. That is something that every third-party group will now be bumping up against. They must get a financial agent and an auditor. In some cases, it will be difficult to find people who do not have conflicts. As a practitioner, Senator Oliver, you are well aware of dealing with that on a daily basis. However, if you are part of a national firm, you do not know for whom your firm is acting.
That is a specific technical example of some of the things that third-party groups will be bumping up against under these provisions.
The Chairman: Mr. Lepsoe, are you suggesting that the third party should not be subject to the limitations that either candidates for parties or parties are subject to?
Mr. Lepsoe: In some ways they are subject to more regulation. This is highly theoretical, but the definition of "issue advocacy" is broader than the definition of, or what constitutes, "election expenses". What constitutes an election expense is an activity that directly promotes or directly opposes a particular candidate or a particular party. That is what parties are subject to. The spending limits that parties face are measured against that definition. The definition of "election advertising" is much broader than that.
[Translation]
Senator Joyal: Mr. Bourgeois, in your presentation, you mentioned the status of women under the Elections Act. Apart from the issue of proportional representation in those countries where such a system has been put in place, the participation of women in elected assemblies has always been higher in those countries that have a different electoral system. Apart from this fundamental change, are there other elements in the present bill that should in your view be changed so as to enhance the participation of women both as candidates and as voters? This is an important objective being pursued by all parties.
I would like to ask Mr. Lepsoe if the bill in its present form gives sufficient guarantees as to the integrity of the identification of political parties? A decision was recently handed down. It brings out important aspects pertaining to the integrity of the electoral process because the bill aims to avoid the supposition of persons. The supposition of parties must also be avoided. Does the bill in its present form offer these guarantees to parties?
Mr. Bourgeois: In answer to your question, we tabled a relatively concrete two-part proposal relating to the participation of women in elections. First of all, we would like to encourage greater participation of women candidates in elections by increasing the reimbursement of election expenses paid to parties and to candidates. Why do both? In our view, there is a monetary issue. It takes money to launch oneself into politics, and women earn less then men. There is no need for any major study to provide proof of that. It is financially difficult to go into politics. One of the first measures our spokesperson in the House of Commons mentioned was an increase of the reimbursement allowed for candidates who are elected, who appear on the ballot and who obtain 15 per cent of the votes as required by the present Act.
The second aspect of our proposal would be to increase the reimbursement provided to political parties, so as to encourage women to become candidates. These two changes could be made on very short notice and would not bring about any astronomical increase in the refund paid to candidates. It would be a source of motivation for aspiring women candidates and it would encourage parties to foster the participation of women.
The proportional representation issue was dealt with by the advisory committee, by the Bloc Québécois Convention and by the Bloc itself. We have taken a position on this issue.
Mr. Lepsoe: I would perhaps have answered your question differently last week. I have not really done a careful study of the new provision of the bill in this area. It is clause 368. The substance of this clause appears to me to be somewhat different. The words are different but my impression is that the provisions, in substance, are the same as clauses 24 and 25 of the present Act. I would hesitate to say very much more about this. We plan on challenging the decision of the Chief Electoral Officer. It was our belief that the present provisions were adequate. I believe that is what everyone thought. I heard the representatives of the Liberal Party before the decision of the Chief Electoral Officer. I believe that nearly everyone, even the Reform Party, had expected a different decision from the Chief Electoral Officer. Given the decision rendered, this might be something to look into. Is the clause adequate?
[English]
The Chairman: Just to follow that up, Mr. Bourgeois, do you not believe that section 409 will help to encourage women to run for Parliament? That is on page 168 of the bill.
[Translation]
Mr. Bourgeois: We are talking about personal expenses and not the election expenses of candidates as set out in the Elections Act. We were really talking about the expenses of candidates and not exclusively their personal expenses. Our proposal is much broader. Personal expenses are subject to the ceiling on election expenses. We were discussing the ceiling in general, which amounts to one dollar per voter. This will not be a problem, but I believe that the Act could go further still.
[English]
Senator Di Nino: I am trying to get my head around this third-party issue. Mr. Lepsoe gave us some opinions principally dealing with the definition. I think he has something here. We should not really be as concerned about how much money is spent, if it is spent properly or is spent in the right way. The potential abuse or misuse is when either the definition of the third party or the definition of the advertising could create a problem. I am interested in the comments of some of the other participants here today as to whether they have the same concern that Mr. Lepsoe has, particularly regarding the definitions.
Mr. Mercer: Senator, I am fairly consistent on this issue. I appeared before the Lortie commission as a volunteer many years ago, and the paper I presented there was on third-party advertising. I must say that the government, in this bill, is even more generous than I would have been. I am not a parliamentarian, so I leave it up to my parliamentary colleagues to deal with that, but I really think it is an intrusion in the democratic process that distorts the process, when any person running for Parliament is subject to advertising from someone who does not have the intestinal fortitude to put his or her name on the ballot. I am quite serious about that.
In my estimation, if you have something to say in the electoral process and you feel strongly enough that you are willing to spend hundreds of thousands of dollars, then there is a method to do that. Either join one of the political parties that are represented here or represented by the one of the smaller parties later on, or run as an independent. If you participate in the process, you must be subject to rules. The rules to which those of us who administer the process for political parties are subject are fairly strenuous and strict.
Questions were asked earlier by Senator Oliver about the transparency in the collection and spending of money. In my personal estimation, that carries over to people who raise and spend money on a third-party process. If we are subject to it, they should be subject to it. In my personal opinion, I would go even further and restrict them even further.
Before we came to the table, Senator Moore made a comment with respect to the advertisements placed by the Canadian Police Association in the last campaign. Quite frankly, those were lies. In the next campaign, we can anticipate that happening again. Representatives of the official opposition party, whatever it might be called at the time of the next election, or some of their MPs, have said publicly that the Government of Canada is in favour of child pornography, and that is an outright lie. You know that and I know that; it is a distortion of the facts. Cases are before the court. Those things, senator, are very important. That is dealing with the political party, but, with respect to the police association, that it is an intrusion into the system that is designed to protect the democracy of all Canadians. If you have something to say, I encourage everyone to say it, but I encourage you to put your name on the ballot.
Mr. White: The example that was given by Mr. Lepsoe in the definitions was one we had not picked up, and I thank him for that. It is of concern. I was hoping to be able to give you an example of my own, and I will give that to you now in a more practical sense.
The minister took a lot of time in committee to say that part of the reason for this third-party spending restriction was to create a level playing field for all the third parties so that they all had to abide by the same rules. However, in fact, publishers whose entire business is to produce newspapers or magazines are exempted. They can dedicate as much space as they want to promoting or criticizing any candidate or party. Any organization can produce its own newsletter or magazine. For example, the National Firearms Association produces a magazine called POINTBLANK. Although they will be restricted from advertising in some other magazine, they can fill their own magazine with as much advertising as they want, even if they put it on a newsstand. Therefore, it is not a level playing field at all.
If we even thought that this was a good measure, which we do not as an opposition, to restrict third-party advertizing in the way this is constructed is not fair. It is very badly drafted and is so open to loopholes that it will not be effective, even if it does not receive a court challenge. We take the position, as the courts consistently have when considering third-party spending in conjunction with elections, that elections are for voters, not for the party, and that voters should be free to express themselves in any way they wish, whether it be as a candidate or simply by spending their own money on the election process.
In terms of the definitions, no, we did not pick that up, but we have our own examples as well concerning that.
[Translation]
Mr. Bourgeois: The Bloc Québécois' position relating to expenses is that the rules must be clear: it is as simple as that. The rules in Quebec pertaining to third party expenses are clearly set out and we should draw from these. These expenses are well regulated. We have clearly defined third party expenses, but the same cannot be said of the current federal legislation.
[English]
Senator Di Nino: Madam Chair, I have one other question, principally directed to Mr. Mercer because of some of the comments he made earlier.
The Chairman: Senator Di Nino, I have both you and Senator Andreychuk on the list, and I intend to suspend this session at six o'clock. We have some food out there, and some of us have a meeting that we must attend before we come back for the second panel later on.
Senator Di Nino: I will take only 15 seconds. Should transparency and openness apply as well to the books and records of riding associations?
Mr. Mercer: It is not a part of the act, but I can assure you, as a person who administers the process, that we would not object to it. I would point out to you, senator, and to others, that the money raised and receipted at the riding level is already reported. It is part of our report that we file with the Chief Electoral Officer.
Senator Di Nino: Is that done on a global basis?
Mr. Mercer: On a global basis, that is right.
Senator Di Nino: We do not know where the money was spent or what it was used for. It is being called a "black hole."
Mr. Mercer: I would remind you, senator, that there are no major restrictions on expenditures.
Senator Di Nino: There is no public accountability on that.
Mr. Mercer: In an election time, there is.
Senator Di Nino: Only at an election time. Thank you for your comments.
Mr. White: Senator, that issue was raised by the Chief Electoral Officer in committee a number of times. His main concern perhaps was bulk amounts of money that were transferred into riding associations prior to the writ being dropped, because then there is no tracking where it came from. I must admit to being a bit naive. I had not really thought about all these issues until the Chief Electoral Officer mentioned them.
Senator Di Nino: You guys have not been around as long.
Mr. White: That is right.
Some of the examples that the Chief Electoral Officer gave were astonishing. I was naive, but we have had some discussions since then and we would have no objection to seeing more accountability and openness there.
Senator Andreychuk: Senator Di Nino has covered most of the points. This "soft money" -- and, that is the new term that has been coined -- has seeped into Canada.
Mr. Lepsoe, you are saying that the definition is very convoluted. Some officer at Elections Canada can probably figure out what they mean by it.
Mr. Lepsoe: I did not mean to say it was convoluted. I took a pretty clear meaning out of it.
Senator Andreychuk: You are going beyond that?
Mr. Lepsoe: I did not say it was convoluted.
The Chairman: He was said it was too broad.
Senator Nolin: He said it was broad and intrusive.
Senator Andreychuk: I really do not know what an advertising message is, although those of you who work in that area probably know what it means, but today we have electronic messaging, which is not covered. We have had someone in to talk about messaging both in print and verbally, but we now have various electronic means of communication. Is that getting at part of the dilemma here?
Mr. Lepsoe: To be specific, are you asking if this covers the Internet?
Senator Andreychuk: For example, I am worried about small NGOs who are issue oriented on a legitimate environment basis and find themselves, every Tuesday at four o'clock, in an international chat room and probably do not get involved in elections per se. They would be trapped by this legislation. Whether they would be charged, and so on, is another question.
Mr. Lepsoe: Your concern may be valid if, for instance, we look at clause 323.
The Chairman: Do you mean clause 319?
Mr. Lepsoe: No, clause 323. We then go to the exceptions in clause 324. Clause 323 covers the blackout. That is one technical area in the bill that is an improvement. The process became quite convoluted under the existing act.
In the exception section in clause 324, they except the transmission of a message that was previously transmitted to the public on what is commonly known as the Internet. There, the Internet is specifically exempted, but it is not specifically exempted from the definition in clause 319. Your concern may well be valid.
The Chairman: Yes, but only if it has been previously transmitted.
Mr. Lepsoe: Yes, but they seem to be saying that, for the purpose of transmission, it is assumed to include the Internet.
The Chairman: Clause 319 says "by any means."
Mr. Lepsoe: I think the senator's question is whether the Internet might be caught. I am saying that it may well be. It is certainly the position of the CRTC that the Internet constitutes telecommunications that, in principle, are subject to its regulation, but it chooses not to enforce it.
Senator Di Nino: Good luck with that.
Senator Andreychuk: The Internet may soon not be the only type of communication that we will be facing. I have recently read about some new electronic innovations, and we simply do not know where we will be in a year or two in this whole field. There is a whole host of new electronic activity that, perhaps, is not in the area of the Internet.
Mr. Lepsoe: It might be useful to ask these questions of Mr. Kingsley when he is here. He is the person who must say that he has all the preparations in place, including all the Elections Canada guidelines. He is the one who must say that those are all in place before this legislation can come into force. I think you should ask Mr. Kingsley that. It is a very good question.
The Chairman: I thank you very much, gentlemen, for coming before us on such short notice. You have been most helpful.
Honourable senators, we now have before us witnesses from the official parties that are not represented in the House of Commons at this time: the Christian Heritage Party of Canada, the Communist Party of Canada, the Green Party of Canada, and the Marxist-Leninist Party of Canada. The witnesses have agreed among themselves the order in which they will make their presentations. We will start with Ms Di Carlo.
Please proceed.
Ms Anna Di Carlo, Secretary, Marxist-Leninist Party of Canada: The Marxist-Leninist Party of Canada welcomes this opportunity to appear before the Senate committee as it reviews Bill C-2, since it is the last stage of the legislative process at which the possibility exists to block its passage into law.
Bill C-2 has been introduced and passed by the Liberal Party, with opposition expressed by the other parties in the House of Commons and by all of the registered political parties. It was drafted and amended in virtually complete disregard of the many recommendations and proposals presented in 1998, when the review of the Canadian electoral system was conducted by the standing committee, and then later during the review of the tabled legislation.
Most important, it was drafted and passed in complete disregard for the very profound and deepening crisis in Canada's political system, which is evidenced by the increasingly low levels of voter turnout -- just one of the expressions of the consciousness of Canadians that the electoral process is not one that leads to their representation and not one that enables them to exercise their right to participate in the governance of society. The fact that the current government speaks in the name of the so-called majority, when the Liberal Party received votes from less than 29 per cent of the eligible electors, the lowest ever in Canadian history, attests to the profound crisis in the system.
It is our opinion that Bill C-2 should be rejected for two main, general reasons. It fails to provide the most minimal requirement of an electoral law, which recognizes the right of citizens to equality before and under the law and of equal benefit and protection of the law in terms of the right to elect and be elected. The absence of what is called an "even playing field" within the context of the first-past-the-post system of party government is found in the unequal treatment of political parties whereby the parties in the House of Commons are given privileges in the sphere of electoral funding and electoral broadcasting, some more than others. The party in power is given the greatest privilege. Bill C-2 fails to correct this violation of the right to equality, a fundamental democratic principle if the electoral law is to be truly fair and free according to any modern conception.
Some of the privileges accorded to the political parties in the House of Commons are also in violation of the requirement for non-partisanship in the conducting of elections. In that regard, the recommendation by the Chief Electoral Officer that the partisan appointments of returning officers be replaced with a merit system was rejected by the Liberal Party. So long as the electoral law does not eliminate patronage in all aspects of the political process, medieval notions of privileges will continue to negate the modern conception of rights. Attempts to provide such a thing with a justification in the 21st century can only deepen the legitimacy crisis in which the Canadian government finds itself.
This failure to provide Canada with an electoral law that is in keeping with the demands of a modern democracy is the main reason why Bill C-2 should be rejected. It is not enabling legislation for the exercise of the fundamental rights set out in the Charter of Rights and Freedoms. To meet the democratic principle today, these rights cannot be informed by the aim of the past, which was that elections must enable the emergence of what is called a clear and coherent political will in the form of party government. Unless elections provide a level playing field so that all electors and candidates who present themselves for election have an equal opportunity to win, the legitimacy crisis facing the Government of Canada will not be overcome. Providing an even playing field would address this key problem facing the political process at this time.
Elections are for the purposes of electing the government, presently comprised of a party in power and a party in opposition. This government must represent the popular will and be seen to represent the popular will. Unless that is the case, legislation passed by that government, an expression of the legal will, lacks legitimacy. Bill C-2 provides for an electoral process that no longer gives rise to a credible representation of the people, seen, besides other things, in the fact that no party can claim national representation today. It is also seen in the increasing use of motions of closure in the House of Commons to stop debate. It is seen in instances such as the implementation of free trade, notwithstanding the fact that the majority of voters cast ballots against free trade. It is seen in the fact that Canada was involved in a war without the House of Commons even deliberating on the matter.
While some express this problem in terms of Parliament having become a so-called joke, because inevitably legislation is railroaded through by the party that forms the cabinet, or that politicians are inherently corrupt, or that elected representatives have to toe the party line, we believe that the problem stems from the failure of the electoral and political process to enable all citizens to participate in governance. The legal will is no longer the expression of the popular will of the people. Neither is the Government of Canada seen as representing the popular will, nor are the parliamentary debates or procedural arrangements such that the popular will gets expressed in the form of a legal will. A very deep legitimacy crisis has emerged.
In this situation, the need for electoral reform that favours renewal is greater than ever. The current electoral process, which came into being at a time when only men of property were entitled to vote and be elected, even though the franchise has been extended, has outlived its purpose. The clear and coherent political will of the citizens of Canada can only be expressed through a system of direct democracy. The system of party government and its electoral process represents vested interests. Far from addressing this problem, Bill C-2 further favours those interests. It has nothing to do with enabling Canadians to govern the society they depend on for their living.
In sum, Bill C-2 gives privileges and benefits to political parties rather than to citizens. It negates the right to elect and be elected by enabling parties to dominate the electoral process even though the membership of political parties constitutes a mere 2 per cent of the Canadian population. It enables these parties to have complete control over who will stand as candidates and excludes citizens from controlling the selection of their candidates.
The Marxist-Leninist Party of Canada calls on the Senate to reject Bill C-2 and set out a new process that would enable the electors to fully exercise their right to elect and be elected, beginning with the selection of candidates and providing public funding to finance the actual electoral process, not political parties, especially the ones with privilege and power. This would include the creation of electoral commissions that would ensure that citizens are enabled to exercise rights to recall their elected representatives and to initiate legislation.
In conclusion, I would point out that we are providing the Senate committee with a full elaboration that goes into detail in terms of our proposals as an appendix.
The Chairman: Thank you, Ms Di Carlo. We will hear next from Miguel Figueroa.
Mr. Miguel Figueroa, Party Leader, Communist Party of Canada: Madam Chairman, on behalf of the Central Executive of the Communist Party of Canada, I thank the standing committee for giving us an opportunity to present our views on Bill C-2, the proposed Canada Elections Act. We have not prepared a brief for your standing committee, although we have brought along copies of the brief that we submitted to the House of Commons Standing Committee on Procedure and House Affairs.
The Chairman: Mr. Figueroa, we do have copies of that brief, although only in English, as I should point out to the members of the committee.
Mr. Figueroa: By way of opening, given the prevailing atmosphere of anti-communism that still, in our view, persists even 10 years after the end of the Cold War, there might be those who would be inclined to consider it ironic that Communists would want to speak upon the question of the defence of democracy. Let me lay that to rest immediately.
Our party is the third oldest party in Canada. It was founded in 1921. Throughout our history, we have fought to defend and to advance the democratic rights of the Canadian people, even during periods when our party was repressed and declared illegal. That includes not only our own participation in the electoral process, running both under the Labour Progressive Party banner and of course the Communist Party itself, but also being, for instance, the first party to fight for universal suffrage for women and to fight for the right of recall, long before Preston Manning's father did in Alberta, and to fight to raise the question of proportional representation, and so on, and certainly for the right for native peoples to vote in Canada.
I might say parenthetically here, not wanting to be insulting, and please appreciate this, that, on the other hand, I think that Canadians could be excused if they found it a little bit more than ironic that the Senate, a non-elected appointed body, one devoid of democratic content by its nature, is sitting in judgment on legislation that regulates the democratic process.
Having said that, may I say that we felt it was important to present our views to this committee because we feel that this legislation is so fundamentally bad on a number of counts that we, and the Canadian people as a whole, need to avail ourselves of every opportunity to speak out and to build momentum, not only to stop this legislation, but to bring about a thorough, deep reform of the electoral process in Canada.
The specific legislation before you is disappointing on a number of levels. First, it is timid and unimaginative legislation. It is stonewalling legislation that has been imposed and is being imposed on the Canadian people in a profoundly undemocratic fashion.
First, why is it timid and unimaginative? This government -- that is to say, the majority government in the House of Commons -- had an opportunity to bring in some significant and long overdue changes to the electoral system: first, to broaden participation in the electoral process and in the exercise of democracy in general; second, to introduce greater equity in Parliament by moving toward some form of proportional representation, or mixed proportional representation, to more accurately reflect the views of all Canadians; third, to end the system of party patronage in the electoral mechanism itself; and, fourth, to curb the influence of big money in elections -- an outrage, not beginning with, but most glaringly stemming from the 1988 free trade elections, which forced the former Mulroney government to convene the Lortie commission on electoral reform.
Canadians had a right to expect that such a bold initiative would come when, in March of last year, the Honourable Don Boudria announced, on behalf of the government, that, instead of amending the current act, the government was intending to introduce an entirely new Canada Elections Act.
It is interesting to note that Mr. Boudria's announcement came immediately after the Molloy decision in the Ontario Court, General Division, which related to the case in which our party raised a Charter challenge to the old Canada Elections Act with respect to a number of aspects of the act -- for example, the 50-candidate rule, the question of the seizure of assets of de-registered parties, and so on.
What we got instead, and what the Canadian people got instead, was Bill C-2, which is essentially a housekeeping bill that retains all of the essential features of the present system and essentially upholds the status quo. One area where the government attempted to bring in some meaningful change, namely, third-party advertising, came under such immediate attack by big business that the government retreated in a most cowardly and unprincipled fashion. This legislation is not only timid; it is also stonewalling legislation, because it comes at a time of increasing public disillusionment with the current system, when more and more Canadians are calling for a more open, inclusive and accountable system, and when more and more Canadians are calling for some form of proportional representation.
Here, I am not referring only to the views of some opposition parties or of some non-parliamentary parties, such as our own, or to some journalists or political scientists. There is, as you are fully aware, a growing frustration and cynicism toward the electoral process among rank and file Canadians from coast to coast. This legislation does not address or move to resolve that widespread disillusionment. On the contrary, it breeds more cynicism.
We cannot help but conclude that those political and class interests who control the government apparatus and the Canadian state itself are not in the least distressed about this dangerous anti-democratic development. Indeed, perhaps they even welcome it. In some important respects, the process is even more advanced than in the United States, where less than 50 per cent of its citizens even bother to vote for the presidency. Most of those who do not exercise their franchise are working class people and poor people.
Finally, we must comment on the thoroughly anti-democratic way in which this legislation was bulldozed through the House of Commons. Instead of broad public hearings, only a short list of invited delegations were heard in committee. Every opposition amendment was routinely voted down, closure was imposed, and second and third readings were held in rapid succession with little debate. It was passed immediately following the budget speech at the end of February, when all public attention was focused elsewhere, on the budget and on the country's finances.
I am sure the committee is fully aware of the historical significance of the fact that three of the four opposition parties actually voted against this legislation on third reading. That is not an insignificant development, in our view.
In conclusion, we are not asking the Senate to hold up this legislation or to reject it. Nor would we support any such action by this body insofar as it is an unelected body. However, the Senate could render an important public service by issuing a formal call to Parliament to undertake a genuine public debate on electoral reform immediately in this country -- something that our party and many others, including constitutional experts and opposition parties, have called for.
We want to make it very clear that we are not suggesting another royal commission like the Lortie commission but, rather, a country-wide public process of discussion and debate that would lead to meaningful electoral reform. Such an action by the Senate would demonstrate a sincere commitment on your part to the defence and the extension of the democratic process in our country.
Mr. Ron Gray, National Leader, Christian Heritage Party of Canada: I wish to express my thanks and the thanks of my party to the honourable senators for this opportunity to speak to you tonight.
When we first raised these points about this draft legislation before the Chief Electoral Officer's committee, we had 10 points that we wanted to stress. When we managed to appear before the House of Commons committee, we had boiled that down to three. Tonight, I am coming to you with one that is the most serious.
Unlike my colleagues to my right, when I came here tonight I was reflecting on the benefits of the present composition of the Senate. When I presented these issues to the House of Commons committee, I was vividly aware of the fact that I was speaking to people, every one of whom would have to sacrifice about $30,000 in order to take a look at what we were asking them to consider. Here, in a committee of the chamber of sober second thought, we are able to transcend that kind of individual appeal. In fact, you may be able to help us formulate these ideas in such a way that they could be drawn to the attention of the other place and, perhaps, be given more serious attention than we were able to get from that committee.
As a prefatory remark to what I want to read to you, let me emphasize that about one quarter of a century ago Parliament apparently felt that it was important to inject public funds into the political process, perhaps because of the rising costs incurred by television, et cetera. The remedy they chose has proven to be worse than the disease. What they have given us and what this Parliament has an opportunity to redress is a corrupt process, probably unparalleled since the time of the family compact, in which those in power use their power to hold their power using public funds. That can only be called corrupt. It is not because the people who are doing this in this Parliament are corrupt people; it is because they have been presented with a system that focuses the use of public funds on the parties that are in power.
The other corruption that it entails is that it compels taxpayers to support parties and policies that they may oppose. I have presented an idea that I think will help to redress this situation.
We recognize that many of our electoral system's problems -- such as the fact that Canada and the U.S. are the last two industrial democracies in the world to recognize the advantages of proportional representation -- are not capable of rectification within this bill. However, a couple of egregious faults can be addressed here.
On behalf of the Christian Heritage Party, I wish to draw to your attention these two serious deficiencies, both of which have the same corrupting effect, namely, the improper use of the power of elected office to perpetuate the office holders in power. This concern has two main components. One is the allocation of tax monies to pay one half of the election campaign expenses of political candidates who get more than 15 per cent of the vote and 22.5 per cent of the election expenses of their parties; the other is the unequal allocation of broadcast time during an election.
The abuse of power to perpetuate oneself in office has been a problem in Canada since the days of the infamous Family Compact and it is important to eradicate such abuses whenever they appear. Most present members of Parliament are innocent of that particular instance of corruption. It happened in 1974. However, those who now sit in Parliament have a unique opportunity to do the right thing by correcting these abuses.
The worst outrage is the use of taxpayers' money to supplement the future campaign funds of successful candidates: specifically, the provision in clause 435 and clause 464, to which I have already referred, that refunds 22.5 per cent to the parties and 50 per cent to the candidates. Consider the effects of this legislation. At the conclusion of an election, every successful candidate receives a refund of half of all of their expenses, which, in most ridings, is equal to about $32,000. When the next election is called, that candidate or that party starts with their war chest already half full of taxpayers' dollars, not donations from their supporters or the public. It is money that is taken from the taxpayers by the coercive powers of the Income Tax Act.
Thomas Jefferson once wrote that it is tyrannical to compel someone to support ideas in which they do not believe. I believe he was right. It is exactly what this provision of the Canada Elections Act does. It compels a taxpayer to support parties and policies that they may actively oppose, but they are powerless to do otherwise.
If Parliament really believes that the democratic process requires public funding, we say let it be voluntary. We have proposed, for example, that a box could be printed at the end of the income tax form that would state: "Ten dollars of your tax return will be used for the support of the democratic political process. Here are the registered political parties to which you may allocate your $10. If no party is specified, your $10 will go to the direct non-partisan operating expenses of Elections Canada." In that way, not one dime of a taxpayer's money would go to a party that he or she opposed, but every taxpayer would still be injecting money into the political process.
Bill C-2 as it stands also perpetuates another inequity and that is the allocation of free broadcast time. That is now allocated on the basis of the number of seats that each party held in a previous Parliament. I suggest to you, senators, that the focus there is entirely wrong. The focus is on what this broadcast time can do for the parties. However, this broadcast time is not for the parties, it is for the voters. A democracy requires an informed electorate. The purpose of allocating broadcast time is to help inform the electorate. The time should be allocated in the way that will most effectively allow the most voters to get the most information about the options that are available to them.
We would propose as a possible formula that national network broadcast time simply be allocated equally among the parties. Regional or local broadcast time should be allocated according to the number of candidates that each party puts forward. The parties that put forward 301 candidates would clearly get more broadcast time because they would be represented in more areas; but in each case, it would be the interests of the voters that would be the focus of the allocation system. We believe that the allocation now entrenched in the legislation should be taken out.
Please let me reiterate that Bill C-2 gives this Parliament an opportunity and a choice either to perpetuate 25 years of abuse of power and corruption or to step into Canadian history as the Parliament that finally put away such abuses and began a move toward the restoration of real democracy in this nation. Thank you.
The Chairman: Thank you, Mr. Gray.
Our last witness is Joan Russow, the federal leader of the Green Party of Canada.
Joan Russow, Federal Leader, Green Party of Canada: I also want to express my appreciation for having the opportunity to appear before you this evening.
I noted earlier that the Chair mentioned that it has been a long time since we have done anything with the Canada Elections Act. I do not know if I have paraphrased her correctly. I feel this is a missed opportunity for real electoral reform -- the other speakers have already referred to that -- that would eliminate discriminatory practices that contravene the International Covenant of Civil and Political Rights, the Charter of Rights and Freedoms, and even statutory law in Canada. Real electoral reform would eliminate institutional collusion through condoning corporate funding of the political process. It would eliminate, as well, conflict of interest that arises because of the supremacy of Parliament over Charter-based decisions.
I would also express my concern about the sections that Mr. Figueroa was referring to where there is refunding and an inordinate drain on the public purse.
First, I should like to deal with the International Covenant of Civil and Political Rights. I have often looked at this document and I feel that it is an incredibly important document that should be implemented right across Canada. In 1982, Canada indicated to the rest of the world that the process in Canada was that, before signing an international agreement, Canada would ensure that the necessary legislation was enacted in Canada. If there was a discrepancy, implementation legislation would be put in place to ensure the removal of the discrepancy.
I noticed a very important discrepancy between the International Covenant of Civil and Political Rights and the Charter of Rights and Freedoms. In the international covenant, one of the grounds upon which there should not be discrimination is political. I think the previous three speakers can definitely say that there is political discrimination in Canada. Certainly I will be stressing that. The previous three speakers mentioned the importance of having proportional representation. From the point of view of the Green Party, that is very evident internationally. We have elected people around the world to participate in government, to be important active forces in government decision making, above all to be a voice for change. That has been a result of proportional representation.
It could be argued that the system we have now, the first-past-the-post system, not only contributes to political discrimination but also is in violation of the equality clauses in the Charter of Rights and Freedoms.
I should like to refresh the memory of honourable senators about the CRTC regulations during elections. I filed a complaint during the election because it seemed that the media was in complete violation of sections within the CRTC. I think it is really important to consider whether this proposed legislation contravenes important existing documents. I will refer to just a few items. I will submit a written brief to the committee when I have an opportunity to do so after my return to Victoria.
I should like to point out a few things. For instance, it says that a licensee shall allocate time for the broadcasting of programs. What does that mean? I would assume that it would have something to do with the platforms of the different parties. But they do not feel any obligation to do that. Also, it states that they will do things in a manner that is equitable to all political parties and that they will do what is required to cover elections. We all realize that when the elections are covered, it is only the main political parties that are being covered.
It leads to a vicious circle. I have often been told, "If you had someone elected, then we would be able to include you in the debate. Right now, I am afraid that you are being ignored and there is nothing we can do about it." It is a vicious circle because one of the reasons we are being ignored is that we do not have anyone elected because we do not have a proportional representation system. Furthermore, because we do not have someone elected, we are not covered by the media, and that contributes to our being ignored.
The CRTC Act stresses the importance of the treatment of issues. That is what I should like to see foremost in the electoral process, where we deal with important issues. This is a way of drawing in the other political parties to discuss issues. After the last election <#0107> and after I sent out numerous press releases related to environmental issues -- The Globe and Mail reported, with great puzzlement, that it is strange that none of the political parties is dealing with the environment. We often hear in the news that there are no political parties concerned about the bombing in Yugoslavia. There are no political parties concerned about genetically engineered foods and crops. We hear that over and over again. We are completely ignored in the public process. The only way is to ensure the implementation in this act of the CRTC regulations. That is extremely important.
Next, I should like to deal with institutional collusion. I did an analysis recently of the 1997 corporate contributions to political parties. The Liberals, Reform and Conservatives all have what could be described as an unethical screen. I guess you are all familiar with ethical investments. They have an ethical screen. The unethical screen used by those three parties is that they will accept money from anywhere. We must realize that the reported donations are only a small percentage of what they possibly have received because they are not required to report donations to regional associations or to candidates outside the electoral process. Here, we have 75 per cent of the seats supported during the election by banks, financial institutions, greenhouse gas producers, oil, coal and gas producers, automobile manufacturers, forest companies, the mining industry, the chemical industry, the agri-business, pharmaceutical companies, tobacco companies, food chains, restaurants, the nuclear industry, the gun lobby <#0107> I believe that is only to the Reform -- and the military.
There is an interesting correlation between the companies that donate to the parties and the military contracts and an interesting contrast between the environment consulting firms and the major contracts given to consulting firms. I was at a conference recently called Globe 2000. David Anderson, Canada's Minister of the Environment, was there looking at the corporate polluters and saying, "You are at the leading edge." He was actually devolving the power of government to the corporations -- that is, offering deregulation and voluntary compliance and allowing corporations to come up with their own environmental management regimes. There were no objective standards. Could this be because of the allowance for corporate funding? I am not suggesting that that is absolutely the case, but when I asked a government representative from Holland in attendance at Globe 2000 if that was allowed in Holland, he said that it would be wrong.
When I returned from the meeting in Vancouver, I read some material that came from the Export Development Corporation. In that material, it said that it is illegal for a Canadian company to give money to officials in a foreign country, in a developing country. A distinction could be made between giving money to elected officials and giving money to a political party. However, it is a very subtle distinction. In many countries, what happens in Canada could blatantly be described as corruption.
The last point I want to deal with is proportional representation. I want to stress how important that system is. We no longer want candidates like David Anderson, against whom I ran in the last election. He was on the radio encouraging anyone who was going to vote for the Green Party to vote for him to prevent Reform from getting in. I talked to numerous members of the Green Party who said, "I really feel badly but I did not want the Reform Party candidate to be elected." This is so institutionalized in Canada that it is hard for most of you, who have probably been in one of the major parties, to understand what we must go through and are still going through when we hear, over and over again, "We really believe in what you want to do and we know that your parties need to have a voice in Parliament, but we do not want to waste our vote." Another thing we hear all the time is "Do not split the vote. Why are you running candidates in this riding?" Citizens become apathetic because they are not able to vote for the party of their choice. If we had a proportional representation system in place, it would be the beginning.
Someone mentioned earlier about the Senate being the chamber of sober second thought. The Senate has an incredibly important role to play because the issues that we are dealing with present a conflict of interest for the elected representatives in Parliament. It is not in their interest to have proportional representation. It is not in the interest of most of the parties not to have corporate donations. It is in the interest, possibly, of their parties to exclude other positions and views.
There are many aspects of the political process, and having been a leader now for two years with the Green Party I am constantly exposed to these limitations. For example, I was not allowed to go to the lock-up for the budget. I asked Paul Martin's office if I would be able to attend as leader of the Green Party of Canada. This is the third year that I would have attended. I go to the Railway Room to comment on the budget. I do a large diagram where I integrate all the expenditures from the different departments through the Treasury Board estimates. They said "No," so I had to go to the Railway Room meeting and speak to the press without ever having seen the document. That is just one example where we are up against this over and over again. Our views are not in the public domain, and I think we have something important to offer.
I hope that honourable senators will use the opportunity that they did in the Senate hearings on the issue of bovine growth hormone and rBST to strongly oppose this bill, send it back with strong recommendations, and raise concerns about serious Charter challenges to this proposed legislation.
I will close by mentioning a case that we will be putting before the courts: a Charter challenge to the first-past-the post system because it discriminates against visible minorities, First Nations, women, and small political parties. We are putting that case together now.
Thank you very much for this opportunity. I hope that you will be bold and courageous.
Senator Beaudoin: It is good to be criticized from time to time. It is something with which I agree. I was surprised by the quotation from Thomas Jefferson. He is one of my heroes. I should very much like to know where that citation comes from. I have his books at home and will be able to go directly to the text. Prima facie, it does not sound like Thomas Jefferson at all. However, it may be.
Mr. Gray: It was I who cited him. I will go home and e-mail you the citation.
Senator Beaudoin: Do you remember in which book you found that quote?
Mr. Gray: I am sorry, I do not, but I will e-mail it to you, sir.
Senator Beaudoin: Ms Russow, I like the Canadian Charter of Rights and Freedoms. It is my Bible. You want us to bring the electoral system as it stands now before the court and have it declared unconstitutional. Do I understand you correctly?
Ms Russow: Yes, and we want there to be a directive of principle going to Parliament to address this issue. If we get a decision in the Supreme Court of Canada that it is unconstitutional, there will be a directive going to Parliament to ask them to address the issue. It is then the responsibility of Parliament.
Senator Beaudoin: There are 400 cases on the Canadian Charter of Rights and Freedoms, mostly in the field of criminal law, but in many other fields as well. There are not many on the right to vote. I have always been scandalized that, for a long time in our country, judges were not able to vote, nor were women until 1940 at the provincial level.
Ms Russow: Nor were First Nations until 1960.
Senator Beaudoin: We are civilized, but it is only recently that we have become so. We have much to do yet.
I was listening to you and Mr. Figueroa. What you describe sounds very nice, but could you identify for me a place on this planet where there is such a society as the one you are proposing? I am interested in international law as well, and I try to find good examples everywhere I can. I agree that proportional representation is better than the system that is now in place. The Charter of Rights is very important, but all legislation is subject to the Charter of Rights in this country and every piece of legislation can be challenged in court in this country. Could you identify one country or one place in the world where those principles are applied?
Ms Russow: Certainly the principles of proportional representation are applied widely. There is no doubt about that. I will be doing research into corporate contributions to political parties. I will use the international network of the Green Party to find out whether that is allowed in other countries. I do not think it is allowed in many countries. I have been surprised over the years when I have been in Central and South America for a number of meetings of the Federation of Green Parties of America when I hear people saying, "What is happening is terrible. The corporations are doing this. They are giving money to the government. They are giving money for elections." They say that is corruption. We do not call it that in Canada; we call it donations. It is interesting. At one of our meetings of the Federation of Green Parties of America there was actually a resolution on the floor lamenting the lack of democracy in Canada because we do not have proportional representation.
The Federation of Green Parties of America, I should like to announce at this meeting, will be sending observers to observe our elections in 2001 or whenever the next one occurs. It will be an interesting reversal, because Canada is always sending observers around the world. We purport to the rest of the world that we have one of the best democratic systems in the world. It is time to dispel the myth. I have attended many international meetings, and I think the myth is being more and more dispelled now. People realize we do not have the most democratic system in the world.
I will close with the story I was going to tell you. During the election in Great Britain, a human rights activist from South Africa was invited to observe the elections there. He said, "The electoral system is fine. It is just 200 years out of date." I think that is what we must look at.
We are moving forward hopefully toward implementing the public trust. That is the responsibility of all of us in Canada, and especially you who have the opportunity of exercising that responsibility in the Senate.
Senator Beaudoin: If we look to one country in particular, which one would you recommend?
Ms Russow: Australia has a far better system, as does New Zealand.
Senator Beaudoin: Australia has exactly the same constitutional system we do except for two things. They have proportional representation, and I do not disagree with that, and they have an elected Senate, which is not a big problem for me. Those are the only two differences. They do not even have a Charter of Rights and Freedoms. They refuse to enshrine.
Ms Russow: They respect international law far more than does Canada. When I went into the legal system in British Columbia, I used a wide range of international law. I received a ruling that international law was not judicable within the courts of British Columbia. In my arguments, I used Australian cases where they demonstrated respect for international law. They used the doctrine of legitimate expectation, saying that citizens have a legitimate expectation that when their government signs and ratifies international agreements those agreements will be implemented in the country. We are not implementing our international agreements in Canada.
Senator Beaudoin: I can quote many cases on the Canadian Charter of Rights and Freedoms wherein our court of last resort refers to international instruments and makes comparative law at the international level.
Mr. Figueroa, can you recommend any country in the world? I should like to look at those who are better than us and make some comparisons. It is true there are some countries that are better than us in some areas, but they are worse in others. Do you have an ideal country?
Mr. Figueroa: I do not know, senator, whether that is intended as a loaded question or not. In years gone by, we would have been asked that question because you would have expected us to say that the Soviet Union is the workers' paradise, et cetera.
Further to Ms Russow's comments, it is not a question of just identifying one country as perfect. No electoral system is perfect. I think that we need to be more concerned with the trend that is emerging internationally in most of the advanced capitalist countries, which includes, by the way, Australia, Japan, and countries in Europe, a number of countries everywhere, and Canada. There is a regressive process taking place, a tightening up of democratic participation, more and more curves being placed on democratic participation, including more and more limitations on the role of legislative bodies as opposed to, for instance, administrative rule by cabinet and so on.
In terms of curbing the participation of alternative political parties, for instance, there is a tightening up in Japan making it more and more difficult for smaller parties to participate in the political process. In Australia, despite some of the positive aspects that are evident there, they have imposed higher thresholds on smaller parties in order to participate. That has excluded a number of the smaller parties from participating, notwithstanding the fact that there is a proportional representation system. From the point of view of our party, we are concerned about the general trends. It is happening in Canada as well, not only federally but also provincially. From that point of view, that is problematic.
The most important thing for us to consider is not whether there a better model somewhere; rather, we must look at what Canadians are calling for, what their concerns are, what their frustrations are with the present party system, the present first-past-the-post system, et cetera.
With respect to the Charter of Rights, that was an important gain for the Canadian people. There is no doubt about that. In our case, certainly, the action we took was based on a Charter challenge to section 3, which led to some changes in Bill C-2. Most noteworthy was the ruling of Justice Molloy that struck down the withholding of 50 per cent deposits from those parties that fail to gain 15 per cent of the vote.
Mr. Gray: Senator Beaudoin has raised two questions. First, relating to the Charter, I wish to point out that when we spoke to the Chief Electoral Officer's advisory committee, we also raised the warning that Bill C-2 as it stands is susceptible to Charter challenges under freedom of opinion and under freedom of religion because the compelling of citizens to support parties with which they disagree is a violation of that right. There will be a Charter challenge if it passes in its present form.
With respect to Senator Beaudoin's request for a nation that we might hold up as a model, I might say that the Chief Electoral Officer had a reception some time ago for his counterpart from Mexico. I asked the official from Mexico specifically if, in Mexico, tax-supported institutions are allowed to make contributions to political parties. He said that they would never allow that. Mr. Boudria was on the platform with him and had said on television that he saw nothing wrong with that practice. I suggested that the minister ought to trade in his binder for a seeing-eye dog.
Another nation that I might raise as an example is Norway. In Norway, corporate contributions to the public process are not allowed. By the way, I might say that Norway has a Christian government that a year ago April, in a national poll, received a 92 per cent approval rating, which is the highest ever recorded by any democratically elected government anywhere in the world.
It is really not Mexico or Norway that I am concerned about: it is Canada. If we are doing some things that are worse than what Mexico allows, please, God, let us not fall farther behind.
Ms Di Carlo: I do not believe a serious question is being posed here.
Senator Beaudoin: My question is not serious?
Ms Di Carlo: No, it is not. We are raising very serious issues here. We are raising the issue, for example, that political parties in the House of Commons are given inordinate privileges in terms of electoral broadcasting and in the way they are funded. Then Senator Beaudoin, to divert from what we are raising, asks us to hold forth a country that is better. This is a very important issue because right now in the entire world everybody is facing an extremely serious political crisis, which is the same crisis we are facing in Canada, of political governments and institutions being so discredited in the eyes of the people that in many countries people are turning to alternative ways of dealing with their problems.
One can say we have the Charter of Rights and Freedoms. That is very nice. In the case of the CPC, the Attorney General of Canada is actually arguing in his factum that the equal right to vote does not equal the equal opportunity to win, that this is a misconception that Canadians have. The party system of government does not recognize equality of citizens to win.
This Charter of Rights and Freedoms will also come into crisis in Canada as more and more people realize that the underlying principles being used to defend what cannot be defended are just not protecting us. The Charter is not giving us what we need in Canada. It is not good to be flippant about these things, because this is a very serious question.
The Chairman: I can assure you, Ms Di Carlo that we are never flippant about anything in this committee. We take it very seriously.
Ms Di Carlo: Then let us deal with the proposals that we are presenting, if the discussion is serious.
The Chairman: We have been talking about the systems around the world and I believe the senator is quite entitled to ask that question. It has been answered seriously by three members of this panel.
Senator Beaudoin: Why not by you, Ms Di Carlo? I accept your criticism. I am the first to say that we have much to do to improve our electoral laws and things of that sort. I have written books on that subject. I will send you a copy, if you want. The subject is very serious. I will say that I agree with much of your criticism. I will do what I can to improve our legislation. I do that every day.
When I ask for an example of other countries in the world, three witnesses have spoken about Australia, Mexico and Norway. I agree, proportional representation in Europe is widespread.
Ms Di Carlo: What I think we are dealing with internationally is a much deeper political crisis. For example, in Italy, they had a proportional representation system. They had a big crisis and so they went to the first-past-the-post system. The political crisis is much deeper and needs to be gone into much more deeply.
Senator Beaudoin: I never said our system was the best.
Ms Di Carlo: I am not trying to have a personal argument.
Senator Moore: I should like some general information for the committee. I should like to know how many candidates each of these parties ran in the 1997 election campaign.
Ms Di Carlo: We ran 65.
Mr. Gray: We ran 53.
Mr. Figueroa: We ran 13.
Ms Russow: We ran 78.
Senator Moore: Fifty candidates in a federal election is a party. We are not dealing with small organizations here. One has 13, but the others are certainly considered significant.
I was interested in the remarks made by Mr. Gray and Ms Russow about the perpetuation of an undemocratic system and the frustration of a smaller party to foster and grow. The Reform Party began 10 years ago and they have been able to succeed. Nothing was put in their way to try to catch the mood or have their ideas accepted by a group of Canadians nationally that would see them elect representatives to the House of Commons. The system worked then for that particular party in very recent history. I find your remarks inconsistent with that very recent experience. The Bloc Québécois is another very good example. Would you comment on those observations, please?
Ms Russow: First of all, the Reform Party does accept corporate donations, and they function with quite a large budget. It does make a difference. We do not accept corporate donations. We operate on a very small budget. I ran as the federal leader and as a candidate on a budget of $6,000. That is one aspect.
Senator Moore: That is your choice. I am talking about the fact that we have a new political entity-- two examples before you --
Ms Russow: It is very regional.
Senator Moore: ...were able to establish themselves and build a popular following.
Ms Russow: Is that not one of the problems? That is what the Reform is trying to deal with now. It was not really a national party. It was just reflected in a couple of provinces. The Bloc Québécois was just a Quebec party.
It makes it easier to build up a political movement if you have people united around one idea -- separation from Canada. That makes it a lot easier to unite a whole lot of people. It is the same for the Reform Party. They build on what is perceived to be the disenfranchisement sentiment in the West.
We are trying to deal with much larger issues. We are trying to deal with guaranteeing human rights, ensuring social justice, labour issues, environment issues, peace, preventing war and conflict, and so forth.
Senator Moore: Nobody is stopping you from doing what others have done. I do not see the walls here that you people are professing. I am sorry.
I find all of your interventions very interesting, and I can assure you nobody around this table treats your remarks with frivolity. We take them seriously. However, I do not see that if you really have something that is catching a wide base of Canadians, whether in one area or the whole area of the country, why you cannot progress. I do not see why or how you are inhibited from doing that.
The Chairman: May I ask you to answer briefly because others wish to respond.
Ms Russow: The problem, as I have outlined, is that because of the existing electoral process we get comments, such as the ones by David Anderson that I have already told you about, that prevent us from becoming elected. I understand the point you are making. Why can we not encourage a complete campaign right across the country for the environment?
Senator Moore: Everything starts with one. You do not have to have the whole country.
Ms Russow: Essentially, that is what you were saying, senator. It did not seem to stop the Reform from moving across the country.
Senator Moore: From establishing itself.
Senator Oliver: As the Official Opposition.
Senator Moore: Yes, they have moved up to Official Opposition. They started with one member.
Mr. Gray: Senator Moore, our party was started the same year as the Reform Party, in 1986. In fact, in the 1988 election, we outpolled them everywhere outside of Alberta.
My information is that the following year, the Reform Party received a $2-million cash injection from the oil patch in Calgary, which made a significant difference between the operation of our two parties. It was when they succeeded in running Deborah Grey in Beaverlodge and won that by-election, thereby getting someone in Parliament suddenly, that they were able to get the attention of the media. The Bloc, of course, was begun by already elected MPs.
Let me give you an example of a by-election held in 1996 in Etobicoke North. When I ran against Joe Peschisolido, who is now one of the candidates for the leadership of --
Senator Moore: He worked for me as a young liberal.
Mr. Gray: There was only one all candidates meeting held in that by-election. With all modesty, I must submit to you that if you talked to any of the 250 people who were at that meeting they would tell you that the CHP dominated that meeting in terms of questions and audience appeal. We had a very strong presence. However, the media had decided that the election was between the Liberal candidate and Joe Peschisolido and so when they were speaking the cameras were on. When I was speaking the cameras not only were turned off, they were pointed at the floor. For the 19,000 or so voters who may have relied on television that night to find out what happened, we did not exist. That is the wall that we were confronted with.
Ms Di Carlo: The point that must be made is that it is quite obvious that in Canada, if you have financial backing, if you have some big corporations to back you, if you have a lot of financial connections, there are no barriers. You will still be treated equally, as the Reform Party was. The Reform Party fought very hard against the unequal allocation of broadcast time. They got some concessions on that and they were allowed to buy more than what was previously allowed, because they had the cash. For us, it does not pose itself in that way. You still have to come back to the question of whether it is legitimate or not, justifiable or not, to have built into the law those kinds of privileges.
I would draw some analogies that you may not like. If, during a period when discrimination against people on the basis of skin colour was in the law, a black man became a lawyer, you might say, "What is wrong with the law?" That is exactly the same kind of argument.
You must look objectively at whether the law discriminates or not. I think a five-year old kid will tell you that it is unfair. It is like making the losers play facing the sun all the time and then saying that this is a great game. How many minutes of air time will the Liberals get in the next election compared to others?
Senator Moore: The message attracts the cash, and the cash gives you the ability.
Ms Di Carlo: That is true, but what message is it? It is not the message that there should be --
Senator Moore: You have to decide what message you want to get out. You have to convince the people that it is worthy of support.
Ms Di Carlo: How do you convince the people if you are faced with a blockade day in and day out, including at election time when you are told that you can have only two minutes but the Liberals can have 112 minutes of free time? How am I supposed to convince the people?
Mr. Figueroa: Further to what other representatives have pointed out, yes, one person can under certain circumstances form a party. We have a recent experience in the United States where literally one person, Ross Perot, who happens to be a multi-billionaire, was able to form a party under very adverse conditions. Under American electoral law, you must be registered in each state. That is a tremendous obstacle, a block really -- disincentive is too mild a term -- for the emergence of any significant third party. However, if you happen to be well heeled enough or have sufficient corporate backing, you can do it. That is precisely the difference.
However, there are other groups who cannot do it: the working class parties, parties that represent marginalized peoples, native peoples, et cetera, who are not the dominant forces in our society. Let us face it, the political process is not somehow divorced from the economic realities that exist. Who owns the newspapers that set the editorial tones of what is acceptable and marketable and what is not?
Yes, the message makes a difference, absolutely, to those who matter. If you provide a message that supports the interests of big business, you will get the cash. There is no question about it.
It has a lot to do with what are the prevailing interests of those who already rule the roost. For instance, with respect to the present alignment of forces in the country, I am not surprised that the Liberal Party, or any of the larger parties, would not be particularly in favour of proportional representation. They have pooh-poohed the example of Italy that was raised. Yet Italy is a very good example to look at because the proportional representation system that has existed in Italy essentially since the war was supported by the United States and by all of the Western countries for one reason and one reason only. It was because the Communist Party of Italy was the largest party in the country. Under a first-past-the-post system, Italy would have been ruled by the Communists since 1945. To prevent that, they imposed, with the support of the United States, a proportional representation system, which still was so volatile that something like 45 governments in 45 years came and went, all in a desperate attempt to keep the Communists out of power. Let us not be hypocritical.
The Chairman: We will not disagree with you whatsoever on that fact because you are quite right.
I will remind senators that we are not here to engage in political debate with our witnesses because it is a given fact that we do not belong to the same parties they do, although it is very interesting.
Ms Russow: Could I make a challenge? Why not see whether corporate funding does make a difference? What if the Senate recommends that there should be no more corporate funding of political parties? Let us see if it makes a difference. Let us test the hypothesis. I challenge you on that.
Senator Di Nino: I thank you all for attending because you bring to this committee, whether you think you do or not, ideas that we do not often hear. They are good ideas, although we need not agree with them. I think I can speak for all my colleagues when I say that they will stimulate our thoughts. I think I can speak for all my colleagues when I say there is not one person here would not have sympathy for the comments being made. I agree particularly with Senator Moore in that I think that democracy will work and that it must be representative of what the people want. In the final analysis, that should be what rules.
If there is one person in the Senate who is seen to be overly serious all the time, it is Senator Beaudoin. If there are any accusations regarding frivolity, he is the wrong guy to accuse.
I have a quick question first of Mr. Figueroa and Ms Di Carlo. What is the difference between the Communist Party of Canada and the Communist Party of Canada registered as the Marxist-Leninist Party of Canada?
Ms Di Carlo: The issue goes back to the law that Mr. Kingsley ruled on just a few days ago about whether or not names are too similar. When we applied for party registration as the Communist Party of Canada (Marxist-Leninist), the Communist Party of Canada, which is the older party, had already applied for registration. We were left with the choice of using the name Marxist-Leninist Party of Canada.
Senator Di Nino: Your letterhead still says the Communist Party of Canada.
I should like to deal now with the issue of proportional representation. I think you will find that there is a group of people in the Senate who would support that idea. I suggest to you that one of the reports you may want to get with regard to funding as well as the types of systems is a book that was put out by the Congress in the U.S. a few years ago. It is on the different systems in the world, and they pick on a number of them, as well as on some of the funding issues.
I put forward a question in the Senate that was reported in The Hill Times on Monday. It will be on the front pages next weekend because of the question Senator Oliver asked. My theory is, and I think some of you have said this, that at the present time we are probably paying or will be paying close to 60 per cent of political financing. That is both during an election year and outside of election years. It comes out of the public purse. I do not argue the point that corporations make a difference, but if you look at the numbers, it is individuals who make a bigger difference.
I wanted to raise the question with you to see if you wanted to comment for my benefit. I am still working on this, and I will probably be making further comments in the next month or so with some specific ideas in mind. I am proposing that this country should look at funding the political system totally through the public purse on some adequate and equitable formula that would take into consideration the popularity of the parties, obviously, because you have to respect the wishes of the people of the country, as well as ensuring that smaller parties, and I said that in my presentation, are not closed out of the system. There must be some formula that could be agreed upon by Canadians. I call it the cost of democracy -- the opportunity to participate in the system and do away with all that confusion and perception that comes with funding a political party. I would appreciate comments from any of you on that.
Ms Di Carlo: Personally, I do not think that the system you are recommending will solve the problem that the political process in Canada is facing. If you look back at the Barbeau commission, the problem being addressed at that time was the same: How do we deal with the fact that it takes such a humongous amount of money to participate in elections as we know them, with huge media, television, the expensive forms of media, while eliminating the perception that certain political parties, at that time a majority of them, were instruments of the wealthy because their funding was coming primarily from large corporations? The system that was selected in Canada came from either Costa Rica or Puerto Rico. I cannot remember which now.
Senator Di Nino: In the last few elections, the biggest contributors have been unions and not large corporations.
Ms Di Carlo: I include unions among the largest corporations in Canada. It is the same point. If you want to look at an innovative idea that would put Canada at the leading edge of democracy, fund the political process but not political parties.
Senator Oliver: In what way?
Ms Di Carlo: Electors need a large amount of information. They need to know about policies and the problems in Canada. There are so many candidates and political parties that there should be an election commission that provides all the information that Canadians need in an impartial manner. It could be done nicely in several magazines that are sent door to door, and that should be the main source of information, plus television and so on; but no money, no public funds, should go to individual parties or to candidates. It is the process of electors making their decision that should be funded. It would be less expensive, but I do not think that that is the issue at hand. We are trying to deal with how to eliminate the problem of money influencing the outcome of elections. That is the essential problem that we are dealing with.
Senator Di Nino: We are in disagreement, because I think if you do not do it through the public purse, you do it through a very small number of people, unless you make political contributions totally illegal. That is for another day's debate.
Mr. Gray: Senator Di Nino, I should like to suggest that the time at which you respect public opinion in the political process is on polling day. No voter is born with a party affiliation stamped on his forehead. When the writ is dropped, there are no assigned votes. No one has or should have a preference at that point.
By the way, in addressing this question, I should also like to address Senator Moore on the question that ideas attract money. The suggestion we are offering is exactly that. Let the ideas attract the money; do not let the legislation direct it to parties.
Because the legislation is controlled by the people who are in power, it becomes, as it has become, an abuse of power to maintain their power. If there is to be public funding -- and I agree that there should be at some level -- then let it be equitable. I would not be at all distressed if the Liberal Party, for example, got six times as much money as we did because they run six times as many candidates. That does not bother me at all. What does bother me is that, in the next election in Hull-Aylmer, which is my riding, Marcel Proulx will start his campaign with $32,000 in the fund already. He will campaign with 50-cent dollars and I must raise every dime that I spend. That is an inequity and it does not allow the ideas to attract the funding. The idea we are proposing would allow the individual taxpayer up to $1,100 or so to direct their contribution. It would very much broaden the base of support, but those who did not want to support a particular party would not be compelled to do so.
Mr. Figueroa: There are two interrelated questions here. One concerns party financing during elections and the other concerns the question of the political contribution tax rebate, which is not an insignificant matter, especially for small parties. For larger parties, it makes a difference in terms of their ability to raise money directly from Canadians.
You will recall that when the tax provisions were first introduced, the arguments that were used in support of them encouraged not the funding of parties but the Canadian people to become more involved in the political process. Yet, the reality is that for smaller parties, in particular with the imposition of more obstacles to their participation, there is a problem concerning registration. The other parties around the table here have not experienced that, but our party did in 1993, when our party was de-registered after being registered for 20-odd years since the system came into effect in 1974. That had a profound impact on our ability to get out of the hole we found ourselves in. Why? We could no longer issues tax receipts because we were no longer a registered party.
What was the logic of that? We did not run 50 candidates. That is what we challenged and that is what Justice Molloy struck down. She said that the 50-candidate rule has no objective merit to prevent the participation or the registration of frivolous parties. In her ruling, she made the point that there is one political party in this country that ran something like 200-odd candidates that had magician as its leader and argued for levitation to solve the problems of the country. Whatever one might think of us, the Communist Party of Canada is not frivolous. We are a serious party. That 50-candidate rule also does not guarantee that the other requirements of party registration are met or not met, namely, that parties function in a responsible way and file reports, et cetera.
What was the reality? Individual Canadian taxpayers who happened to be supporters of the Communists were discriminated against because when they wanted to give a donation they could not get a tax receipt. If they wanted to get a tax receipt, they had to give to a party they did not support. That is one example of where the current structures actually militate in a concrete way against smaller parties and in favour of those who are already large.
We have made the case over and over again that, as reprehensible as it might be, in the case of a private country club, it is understandable that the members of the private country club would make the decisions on membership requirements to get into that club. We know what that has led to in the United States, particularly if you are talking about golf clubs. The democratic process, however, is not a private affair. It is not a private country club. We have this basic contradiction, to which we have all referred, and that is that the parties already around the table are the ones that make the laws that determine who sits around the table. That is fundamentally problematic.
Senator Oliver: You are here giving your input on changing the law. That is why you are here.
Mr. Figueroa: Naturally, but we do not have a vote. We did not cast a ballot. As a matter of fact, even the opposition parties that cast a ballot did not count for much back in February. Maybe it will be different in the Senate.
The Chairman: The majority rules.
Ms Russow: The questions you are raising are extremely serious. What I will say probably does not fit in to the sort of response that has been anticipated.
We must examine what constitutes a legitimate political process. In Canada, the political system during the election campaign is a circus. It does not deal with serious issues.
Senator Buchanan: Wait a minute!
Senator Di Nino: There was GST and free trade.
Ms Russow: That is one of the problems. In Canada, we have had a government in power for years that promotes economic growth at any cost. We are now living in a wake of negligence.
You are talking about whether or not the message we have would be capable of engendering support across the country. I raised the issue of funding. People have been involved in not heeding warnings over the years. The message that the Green Party is communicating is one of precaution. That does not lead to economic growth. When we deal with economic issues, we are talking about banning genetically engineered foods and crops. The last time that was mentioned, what did Mr. Romanow say? He said that that would impact on farmers.
Governments right across the country are not acting with precaution and foresight. We get ourselves into serious situations such as planting genetically engineered crops across the Prairies when no one wants them. That is why we have got to find a way of getting another message out. Our message does not contribute to economic growth at any cost.
The Chairman: We are not talking about messages of parties right now, we are talking about the Canada Elections Act.
Ms Russow: I know that we are not talking about messages of parties, but this is key. The whole process has to be issues-based. It has to be a process where the concerns and the issues -- not just the ones that a few parties decide are the issues but a wide range of serious issues -- must be addressed during an election. That must be at the forefront.
Politics is serious. It is not flippant with buttons and all the flags, and so on. It is a serious process. There is a way of combining the two recommendations here of having a public process in place where the platforms and the programs, as indicated in the CRTC Act, are widely disseminated across the country. There is also the option within the taxation process for contributions to a political party of one's choice. Individuals vote and individuals should contribute to parties. If there was no more corporate funding, if we had government funding, that would ensure that the money that was spent to ensure that the ideas, the essence of the political process, were circulated across the country and it would allow individuals to fund particular parties. We could combine those two and come up with some sort of solution.
The Chairman: I wish to point out that it is now 8:10 p.m. We should try to wrap up by 8:30 p.m., if we can.
Senator Poy: I found your presentations very interesting. You have touched on many issues. Senators Moore and Di Nino have asked some of the questions that I was going to ask. I will concentrate mainly on funding.
All of you have proposed that funding should be through individual contributions and not contributions from corporations or unions. Am I correct?
Mr. Gray: Yes.
Ms Russow: Yes.
Senator Poy: I do not know the difference between the Marxist-Leninist Party and the Communist Party. Are you not the same party?
The Chairman: They are not. Senator Poy, I would suggest we ask them that on our own time later on.
Mr. Figueroa: If we had more broadcast time, perhaps you would know the answer to your question, senator.
Senator Poy: What you are saying is that the Liberal Party and the Conservative Party attract a lot of funding.
Ms Russow: As well as the Reform Party.
Senator Poy: The Communist Party has been in existence since the 1920s. There must be a reason why from the 1920s until you were deregistered you did not have enough support to make your party successful. That is my first question.
As far as individual funding is concerned, I do not know whether anybody would receive enough money to run in an election, because running in an election involves big machinery. Unless everyone volunteers, you cannot afford it because some people have to be paid. They have to travel. You have to have money to cover those expenses. They have to stay somewhere. Another thing is that there are individuals who will give, as Mr. Gray suggested, up to $1,100. Then there are those who would give, perhaps, $10. It depends on how attractive the party policy is. You still have that inequality. Some parties will still get more money than others. Could you comment, please?
Mr. Figueroa: Thank you for your question. It shows that, in a narrow political sense, in terms of looking at electoral structures, it is not sufficient to see the dynamics of the political process in the larger sense. I am sure all the members of the committee appreciate that.
Why did the Communist Party not grow? It was because we were essentially illegal when we were formed. The RCMP burned down our barn where our funding convention was to be held in 1920 -- long before the PQ barn was burned down in Quebec, something that came out during the Macdonald commission. The party was essentially illegal under section 98 and under the War Measures Act, which was not repealed for a number of years. That is one of the reasons one of our leaders was in prison. Then there was the Cold War directed against the Soviet Union but with a local target -- the communists in Canada in the trade union movement and the mass movement. That was an attempt to isolate and marginalize communists, to vilify us, to have witch hunts and people looking under beds for communists, to present us as agents of a foreign power. That was a despicable thing but it was a reality. Who is to blame for it? Anybody around this table? No, not necessarily; but, certainly, it was systemic, which I think you will appreciate.
There are a number of reasons why certain parties do not advance. Certainly, in the case of the left and of the Communist Party that has happened.
On behalf of our party, I wish to say that we do not necessarily agree that unions should not be able to contribute to political parties. Why do we say that? It will be a very rare day when corporate financing is really and truly eliminated from the political process in this country. It will not be until there is more fundamental change than what would be involved in a parliamentary decision to rewrite electoral legislation. Ms Russow from the Green Party has alluded to the fact that there are all sorts of indirect ways that those with money channel funds into political parties, and not just through direct means.
Much could be said about trades unions and how democratic they are. We know some unions are certainly much more grassroots based and some are more hierarchical and less democratic, perhaps. The most undemocratic union is 1,000 times more democratic than a transnational corporation. The Canadian people cannot vote out of power Toronto Dominion. Certainly, union members have some control over their unions. It was a natural development that trade unions became involved in the political process. It was precisely because they saw that the dominant forces in society and the dominant political parties in Canada were beholden primarily to business interests. When has that not been the case? I do not want to get into provincial examples. Federally, when has that not been the case since Confederation?
Senator Poy: Is what you are saying that you agree that trades unions should be allowed to contribute?
Mr. Figueroa: What I am saying is that the system of political financing must be completely transparent. In this respect, I think unions are more transparent than the funding that comes from the corporate sector.
Ms Di Carlo: I want to clarify what I was referring to earlier and set out the position that we are presenting. Political parties are institutions that should have the right to collect money from whomever they want. In that sense, it is the responsibility of political parties to get funding from their constituency. If their constituency is the banks, so be it. If it is the workers, so be it. The point I am making is about the electoral process and how the election process should be funded. That is where I am making the differentiation. Public funds should be used not to finance political parties, but to fund the electoral process and the process of informing citizens and allowing them to exercise their rights. Within that, we are proposing that political parties should not dominate the process. Candidates, for example, should be selected by electors and not by political parties. If they happen to be a member of a political party, that is neither here nor there -- they should be selected by constituency committees that are truly made up of the electors and not political parties.
Senator Poy: That is the ideal.
Ms Di Carlo: I do not think it is an ideal. It is the proposal that we are talking about.
Senator Pearson: This has been fascinating because you have raised questions that many of us think about but not often enough. The issues around proportional representation, for example, are ones that we all have in the back of our mind. I have observed over time the evolution of parties in this country and in other countries. I have lived in the former Soviet Union and in Mexico. One reason Canada is the way it is is that we are different. Each country is different. We are a huge country and we are virtually ungovernable.
Senator Andreychuk: Do not admit that!
Senator Pearson: Therefore, in the process of voting in elections and so on there is a huge set of forces that are put into play. Part of the issue we are now examining is how those forces are directed. It would be wonderful if voters voted on issues. In fact, one of the questions you posed to me was who decides what those issues are. I should like to go back to the elector. My impression and my own experience as a voter is that the issues are among the questions that pass through my mind when I am making a decision, but there are other things going on. Sometimes it is the personalities and sometimes it is what is at play in the environment, and so on.
I would support the fact that there has to be some fairness in the forces that are let lose. We cannot control the media, we know that; we have no control over the media. The challenge for all the groups at the table here is getting your grassroots support. It is getting your own volunteers to go out and get other volunteers. I should like some comments on how you reach out to individuals. The second question is whether this bill prohibits you from doing that.
Ms Russow: Yes. I should like to raise something we have not talked about before: the poll. I asked people at Angus Reid the other day if they have ever had a poll on proportional representation. The senior vice-president said that no, they have not. I said that that surprises me because, as you know, after every election people grumble and say that the Liberals were elected with 39 per cent, for instance. In Ontario, there is always grumbling after an election. What I suggested was a poll perhaps explaining what proportional representation is and then asking, "How would your vote change if there were proportional representation?"
I know what is happening in B.C. now with the Green Party. We have had a lot of problems in B.C. but we are at about 11 per cent of the poll. Things have completely changed. We are in the news. The polls make an incredible difference. What has often happened, and this goes back to the question Senator Poy was raising, is that all these factors are involved. There have been surveys and they do not even mention us. They just say "other parties," but if they list the Green Party and the Marxist-Leninist Party, there is a significant difference. People suddenly put it in. When they are asked how they will vote, people still think, "If I do not vote for David Anderson, the Reform Party will get in." They will still say they will vote for the Liberal Party even though they may be voting for the Green Party.
I would be interested in the results of a poll saying, "Here is the proportional representation system. If there were a proportional representation system in place, how would your vote change?" If that poll were released, you might see a difference in the whole electoral system because people would start to say, "Yes, I am going to put down the party that I really want to vote for." You would start to see a shift in the percentages. Then the media would start to take us seriously.
The media do not take us seriously because we have no one elected. They do not take us seriously because we are not up in the polls. As I said, in British Columbia they are starting to take us seriously. The Globe and Mail reported what was happening: the Green Party going up and the NDP going down. The polls make a big difference. That must be addressed in this legislation. There have to be guidelines.
Senator Moore: What is behind the polls is the message, though; that is the point.
Ms Russow: Of course, the message is important. I keep stressing that that is the issue. The issue and the message are incredibly important. We also need fairness in polling.
Mr. Figueroa: We have been talking about proportional representation. It seems to me, and correct me if I am wrong, that in France they still have the preferential voting structure in which they have two rounds.
Senator Beaudoin: That is a compromise, but not a good one.
Mr. Figueroa: Even in that case, there is an opportunity for citizens to express their first preference the first time they go to the ballot box, to vote for what they want and not vote for what they do not want, and then on the second round they make a choice.
Senator Pearson: But often they vote for who they want rather than for what they want.
Mr. Figueroa: That is right. It might not be so much on issues but on personalities, profiles, et cetera.
Your question was concrete. You want us to give some examples of where Bill C-2 militates against smaller parties. I will give you a good example, not just in Bill C-2. Since the mid-1980s, the duration of the election campaign itself has continually been cut down. You make the point that in the final analysis you have to get out your troops and go door to door. That is what our party does and that is what all of our parties do.
Senator Buchanan: We all do that.
Mr. Figueroa: There is a big difference. We cannot afford national advertising. With all due respect, Senator Buchanan, when you look at the amount of resources expended on national paid advertising and also the free advertising that political parties get by virtue of being big parties during an election campaign, that is what really carries the day.
Senator Pearson: I am not sure it does. That is the question I am trying have answered. As an individual, I am not sure it is those ads that carry the decision that we are making.
Mr. Figueroa: The fact remains that that is not even an option for smaller parties. We have to rely on going door to door. In an election campaign that is 35 days instead of 60 days, if you have an advertising blitz starting in the second week you can get a lot of exposure in a 35-day campaign. For smaller parties, it is very difficult to go door to door in that time.
Senator Oliver: You are advocating a longer campaign at great expense.
Mr. Figueroa: That is one example of where some of the changes, the reforms in the electoral process, militate against smaller parties. I do not see how one could conclude that that would be a neutral change.
The Chairman: I will ask senators not to interject any more so that we can allow our witnesses to answer.
Mr. Gray: Senator Pearson made reference to the electors being the ones to make the decisions. I agree wholeheartedly with that. The proposal we have suggested would do just that. You could, and often do, wind up with a situation where the governing party near the end of its mandate is becoming hugely unpopular but they will, nevertheless, have most of the public money with which to start their next campaign. That is why a shorter campaign is so difficult for us. We have to raise the money to get our campaign started. They already have half of their money in the bank and are ready to go, unless, of course, they are paying off a huge debt that they have acquired; but they are paying it off with public money.
We are suggesting that you not allow the legislation to give preference to giving public money to those who are in power. Let the individual taxpayer allocate the public money where they feel appropriate year by year at that time. Similarly, with the broadcast allocation, please let us remember that the focus of the Canada Elections Act should not be on the parties; it should be on an informed electorate that has access to all of the ideas. That is what we are trying to talk about.
Ms Di Carlo: I am not sure I understand the question. Our party is 30 years old. In terms of political work that we do, I would say we do more than all of you put together. We have a weekly national paper that is published in French and English. We have a Web site that changes every day. We are out all the time doing political work. That is not the point.
We are talking about elections. If you want to differentiate between our party -- I am now talking about the other smaller parties -- and the parties that are in the House of Commons, generally, one is an election machine and the other is a political party in the sense of trying to politicize people. For example, one of the biggest problems cited in the Royal Commission on Electoral Reform was that the parties in the House of Commons have become election machines. If somebody knocks on the door of the NDP between elections to say, "I want to join," literally they do not know what to do with that person. They will say, "Well, yes, wait until the next election and then you can distribute some leaflets."
I am not inventing this. That was one of the problems the Royal Commission cited. In terms of building a national party, how did the Liberal Party become a national party? Again, the Royal Commission, your own document, clearly states that it was through an extensive system of patronage across the country. By the 1970s they established an extensive system of public financing to keep themselves able to have large amounts of money in their pockets to carry out big campaigns to bamboozle people.
I am sorry to insult anybody, but you cannot tell me that elections that are organized by PR companies, which quite often are resident in the United States, are meant for the purpose of politicizing Canadians to make the right choice. I defy any one of you to tell me that.
Senator Moore: Look out.
The Chairman: At this point I would point out that perhaps we are not giving the voters of Canada enough credit for being able to make up their own minds.
Senator Buchanan: I am not a philosopher. I am not a political scientist. I am a humble Nova Scotian and grassroots politician. The group here is rather philosophical in their approach to politics. I do not believe politics and philosophy mix at all.
Having said that, the political process in this country and in our provinces has been criticized tonight. That is fine. You can criticize our process -- your process, because you are all Canadians -- all you want. Please remember that our process has survived for over 130 years and, frankly, it is doing very well in this country.
You seem to be saying -- if I understand you and I think I do -- that the people of Canada abhor the process and the system we have in place in this country. I do not believe that one bit. In elections in our province 68 per cent to 75 per cent of the people get out and vote. In our country we have 55 per cent. We are the envy of many countries in the world.
Senator Oliver: Such as the United States.
Senator Buchanan: Yes. If people abhor the system as much as you think they do, then why do they not rise up and go against the system? They do not because you cannot point to one poll in this country that says that the people want to scrap our system for another system of government. I have dedicated thirty-three years of my life to political life, and I will tell you now that people across this country do not abhor the system of government.
The Chairman: Senator Buchanan, is there a question?
Senator Buchanan: I will paraphrase Sir Winston Churchill, who said that their system of government may be the worst but it is better than all the others.
Senator Beaudoin: It is the worst except all the others.
The Chairman: Was there a question in there rather than a political statement?
Senator Buchanan: Do you agree or disagree?
The Chairman: Senator Buchanan made a statement; therefore, I would ask each witness to wrap up with a 30-second statement.
Ms Russow: You have made an excellent suggestion that builds on what I proposed before, that we encourage the polling companies across the country to actually ask the people whether or not they like the system.
Senator Buchanan: The most important poll is election day.
Ms Russow: I mentioned earlier that often people go out to vote because they are afraid of what might happen and they want to prevent a certain person from getting in.
Senator Buchanan: Canadians are not afraid and Canadians are not stupid. They are pretty smart people.
The Chairman: Senator Buchanan, please allow each of the witnesses to wrap up.
Ms Russow: This has been a very interesting exchange. I hope that you will listen to some of the proposals that we have made and give them due consideration. Please recognize that, as the Chair said at the beginning, it has been a long time since we have reformed the Canada Elections Act. This is not a time to tinker. This is a time for reform. I hope that you will be bold and go back and make some exciting suggestions. It seems as though you have already made some. I have heard a number from around the table that I think are very interesting. Show that the Senate is the chamber of sober second thought.
As has been said by the elected party, they are even against this bill. I hope that you will make some strong recommendations and that, perhaps, we can move away from the antiquated system we have now, which was identified by the social activist from South Africa whom I mentioned earlier, and move towards a real system of citizen participation and democracy that is fair, just, equitable, and in full compliance with the Charter and with the International Covenant of Civil and Political Rights.
I hope that you will convey that message.
Senator Buchanan: You do you know that I signed the Charter as premier?
The Chairman: Senator Buchanan, you are cut off.
Mr. Figueroa: It is tempting and difficult not to rise to the debate. I am pleased to see that Senator Buchanan has not lost any of his charm.
It is a distortion to say that the smaller parties are trying to make the case that the Canadian people abhor the present system or want to change the whole governmental system. I do not believe that is true. That is setting up a straw person and knocking it down. However, what is happening is that, even though they vote and still have some confidence in the electoral system, Canadians are becoming increasingly dubious about the worth of their vote and of the political process. It is not the first time that they have thought that they were voting for one thing and got something else. It started with the Liberals under Mr. Trudeau, when they thought that they were not voting for wage and price controls, and then they got wage and price controls. Mr. Mulroney came out against free trade, and then moved to introduce free trade. Most recently, in 1993, Canadians wanted to reject the policies of Mr. Mulroney and found that they got something that not only went in the same direction but, in fact, carried the process even further.
The Chairman: The Elections Act, Mr. Figueroa.
Mr. Figueroa: What that reflects, however, is a fundamental problem with the present system, and in particular with the party system. From that point of view, we, all the small parties and other constitutional experts, have put forward some concrete proposals on making some changes to the current system. We are not presenting pie-in-the-sky changes. Many of these are real changes that could be implemented, have been implemented in other countries, and we need to open up this process. That is why we are appealing to the Senate to raise the question of having a genuine, open public debate about our electoral system; not just nibbling around the edges but engendering a real public discussion in this country on electoral reform. I think we will then find the answers to the questions that, perhaps, we have differences over, such as whether Canadians really want change or not.
Mr. Gray: I have not yet spoken about proportional representation. I should like to present our party's support of that idea. I did not bring it up because frankly I think this bill is so close to being rammed through that there is not time to introduce that kind of change. If honourable senators feel there is time, let me cite some really eminent authorities for you. Last June, an editorial in The Globe and Mail took great pains to point out that Jean Chrétien, in 1984, said that if ever he were to become Prime Minister, the first thing he would do is introduce proportional representation. In the last election, the Conservative Party got almost as many votes as the Reform Party, but one-third the number of seats. That is a difficulty that would have been resolved by proportional representation.
When I began voting, national turnout for federal elections was typically in the fairly substantial 70 per cent range. The figure is now down to one voter in three staying home. That is evidence not that people want to destroy the system but that there is some loss of confidence in it.
The restoration of some equity in the financing of elections would go a long way toward restoring the authority of the voter. That is why I have submitted this suggestion that we let the voters decide where the funds should go, not according to how they voted in the last election, but year by year, as their sentiment and reading of situations directs.
Ms Di Carlo: The issue that has been raised by Senator Buchanan needs to be addressed. I do not think it is a matter of preference, taste or opinion as to whether there is a serious problem of political discontent in Canada.
I frankly am kind of taken aback that it is even being put out for question, as in the Royal Commission on Electoral Reform, the documentation was so extensive. A total of $22 million was spent in order to consult Canadians. The majority of Canadians said they wanted fundamental reforms in Canada. In an opinion poll that the Lortie commission carried out, politicians fell ninth on a list of respected categories. That is a very serious crisis.
The Chairman: If we can perhaps get back to the bill.
Ms Di Carlo: I am speaking to the bill. This government, this political institution that we are dealing with, is created through the electoral law, in part, aside from our constitutional laws. The electoral law gives rise to our government.
The point I make is that we need to reject Bill C-2 and address the serious requirements that we need in Canada. Otherwise, we will face continuing political discontent in the country, which does not bode well for the future of Canada.
The Chairman: Thank you very much. I thank you all for coming and having the patience to stay with us this long and this late.
The committee adjourned.