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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 9 - Minutes of Proceedings

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OTTAWA, Wednesday, June 6, 2001 
(16)

[English]

The Standing Senate Committee on Legal and Constitutional Affairs met at 3:40 p.m., this day, in room 257, East Block, the Honourable Senator Milne, Chair, presiding.

Members of the committee present: The Honourable Senators Beaudoin, Buchanan, P.C., Cools, Fraser, Joyal, P.C., Milne, Moore, Nolin and Pearson (9).

In attendance: From the Library of Parliament: Nancy Holmes.

Also in attendance: The official reporters of the Senate.

Pursuant to the Order of Reference adopted by the Senate on Wednesday, May 9, 2001, the committee proceeded to study Bill C-9, An Act to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act. (See Issue No. 8, Thursday, May 30, 2001 for full text of the Order of Reference.)

It was agreed, - That the committee proceed to clause-by-clause consideration of Bill C-9.

It was agreed, - That the title stand postponed.

It was agreed, - That clause 1 carry.

It was agreed, - That clause 2 carry.

It was agreed, - That clauses 3 - 27 carry.

It was agreed, - That the title carry.

It was agreed, - That this Bill be adopted without amendment.

It was agreed, - That observations be attached as follows:

The major impetus for Bill C-9 was the recent ruling of the Ontario Court of Appeal in Figueroa v. Canada (Attorney General) in August 2000. The Court held that the sections of the Canada Elections Act which provide that only registered parties can have the party affiliation of their candidates listed on the ballot violate the right to vote in section 3 of the Canadian Charter of Rights and Freedoms and are not justifiable limits to that right under section 1. The Court found that the right to vote contains an informational component, and the listing of party affiliation on the ballot is an important piece of information for voters. While the provisions in the Act seek to avoid voters being confused or misled, it did not follow that because a political party nominates 49 or fewer candidates, the listing of the party affiliation on the ballot will mislead or confuse voters. In fact, for smaller parties, it may provide the only information that the voter has about that particular candidate. These provisions were therefore declared invalid, but the declaration was suspended for six months to allow Parliament a reasonable opportunity to amend the legislation.

In response to the judgement of the Court of Appeal, Bill C-9 would allow "political parties" - that is, groupings or entities who nominate at least 12 candidates - to have the affiliation of their candidates shown on the ballot. Clause 12 of the bill further provides that in the case of by-elections, only those parties that had nominated at least 12 candidates in the preceding general election are entitled to have their candidates identified on the ballot. This is not, however, any different than is currently the case for new registered parties under the Canada Elections Act.

In his appearance before your committee on May 30, 2001, the Chief Electoral Officer of Canada, Mr. Jean-Pierre Kingsley, stated that while his office had no concerns with the technical and administrative amendments proposed in Bill C-9, he felt that the changes regarding identification of political affiliation of candidates on electoral ballots raise some important issues. In particular, Mr. Kingsley felt that a candidate representing a political party at a by-election should be allowed to have his or her political affiliation on the ballot, provided the party has fulfilled all the requirements of the Canada Elections Act. It, therefore, logically follows that a single candidate representing a political party at a general election, should also be allowed to have his or her political affiliation on the ballot, again provided that the party had met the requisite legislative requirements.

In his appearance before your committee, the leader of the Christian Heritage Party provided a practical example of how, in his view, the current threshold provisions on ballot identification can work to generate misinformation among voters. Due to the de-registration of the Party, its candidates could not be identified on the ballot during the last general election. Apparently, one member of the party spoiled her ballot because she believed that the Party's candidate was no longer running for the Christian Heritage Party, since he was not identified on the ballot as being endorsed by the Party.

The Chief Electoral Officer also used this example before your committee in support of his position that a single candidate representing a political party at a general election should be permitted to have his or her political affiliation on the ballot. As well, the Chief Electoral Officer referred to the Figueroa decision where the Court pointed out that the Communist Party of Canada (CPC) is a political party within the common understanding of that concept, even though in the general election of 1993, the CPC nominated only seven candidates, and in the general election of 1997, it fielded none at all. The Court noted that the CPC has all the attributes of a party: a leader, officers, a membership, a platform, and it chooses and supports candidates for election. Moreover, the CPC is prepared to register and subject itself to the various provisions which regulate the identification of party affiliation on the ballot. In the Court's view, denying candidates of the CPC the right to show their party affiliation on the ballot does nothing to avoid confusing or misleading voters. To the contrary, it denies them information which could assist in determining how to cast their ballot. For example, some (and, history suggests, only a few) will want to cast their ballot in favour of a candidate because he or she is endorsed by the CPC. Others (and, history suggests, the vast majority) would never vote for a candidate endorsed by the CPC. In either case, the voter will be assisted in making an informed choice if the candidate's affiliation with the CPC appears on the ballot.

In response to questions by a member of your committee concerning the argument that Bill C-9's proposed threshold number of 12 has a certain familiarity and historical resonance with the House of Commons, Mr. Kingsley drew a distinction between those who are elected and those who are trying to get elected. He stated that it was not clear to him why the threshold for the former should be the same for the latter, and he pointed to the fact that the Court of Appeal in Figueroa clearly indicated that it is possible to have different thresholds for different purposes under the Act.

While your committee sympathizes with the Chief Electoral Officer's view that the political affiliation amendments in Bill C-9 raise some interesting issues, we are cognizant of the fact that the Court of Appeal suspended its declaration of invalidity for a period of only six months commencing August 16, 2000. Your committee has therefore passed the bill without amendment; however, it is our expectation that this issue will be given due consideration when Mr. Kingsley submits his report on proposed legislative amendments to the Canada Elections Act, pursuant to section 535 of the Act. For its part, the Standing committee on Legal and Constitutional Affairs will continue to monitor these issues in relation to election law and the electoral process.

It was agreed, That the Chair report this Bill at the next sitting of the Senate.

At 4:05 p.m., the committee adjourned to the call of the Chair.

ATTEST:

Jill Anne Joseph

Clerk of the Committee

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