Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence for April 28, 2004
OTTAWA, Wednesday, April 28, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-17, to amend certain acts; and Bill C-3, to amend the Canada Elections Act and the Income Tax Act, met this day at 4:22 p.m. to give consideration to the bills.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: This afternoon we will proceed to clause-by-clause consideration of Bill C-17 as per discussions from our last meeting. Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Joyal: Before we begin, I remember discussing the nomination for deputy chair of the committee.
The Chairman: We will, Senator Joyal. If it is the committee's wish to do that before we go to Bill C-17, we can do it now. The chair will entertain nominations for position of deputy chair.
Senator Joyal: I nominate Senator Andreychuk.
The Chairman: Is there a seconder for the motion? Thank you, Senator Rivest.
No further nominations? All in favour? Congratulations, Senator Andreychuk. Is it agreed, honourable senators, that we now move to clause-by-clause consideration of Bill C-17?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall the short title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clauses 1 to 10 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 11 to 20 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 21 to 32 carry?
Hon. Senators: Agreed.
The Chairman: Shall the short title carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Is it agreed that I report this bill at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Without amendment, of course.
Honourable senators, we now turn our attention to Bill C-3. I understand that the minister will appear with his departmental officials.
I welcome the Hon. Jacques Saada, Mr. Perrault and Mr. Zaluski. Minister Saada, I understand you have a presentation to make.
The Honourable Jacques Saada, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform: It feels as if I am on an exchange program between the House of Commons and the Senate. It is always a pleasure to be here.
[Translation]
Mr. Chairman, I am very pleased to have this opportunity today to appear before you to discuss Bill C-3, an Act to amend the Canada Elections Act and the Income Tax Act.
Bill C-3 responds to the immediate impact of the decision of the Supreme Court of Canada in Figueroa, which threw into question some of the key aspects of the Canada Elections Act relating to the registration of political parties. The Court ruled that the 50-candidate requirement for party registration violated the Charter of Rights by disadvantaging smaller parties.
However, the Court suspended its ruling for one year — that is, until June 27, 2004 — to give Parliament time to amend the law. The end of the suspension period is rapidly approaching. That is why the government has made it a top priority to bring forward a legislative response, to ensure that our electoral system remains operational.
Bill C-3 is not, however, the final word. The Figueroa decision is very complex, and its implications require further study. The government will ensure this takes place. That is why, for example, the bill contains a two-year sunset provision, which I will speak more about later.
In my remarks today, I will begin by reviewing the implications of the Supreme Court's ruling and the key provisions of Bill C-3. I will then address some of the criticisms that have been directed at the bill.
[English]
In Figueroa, the Supreme Court ruled the 50-candidate threshold for party registration was unconstitutional because it excluded smaller parties from certain benefits under the Canada Elections Act and Income Tax Act. The three benefits at issue were: The right to issue tax receipts for political contributions; the right of the party to receive candidates' campaign surpluses and the right to have a candidate's party affiliation listed on the ballot.
The court unanimously concluded that the 50-candidate rule, as a condition for access to these benefits, was inconsistent with the right to vote in section 3 of the Charter and could not be justified under section 1. The court held that the rule's impact on small parties infringed on the right of meaningful participation in the electoral process.
As I mentioned, the court declared the provisions unconstitutional but suspended its judgment until June 27 in order to allow Parliament time to amend the legislation. If no legislative amendment has been made by then, the 50- candidate rule will cease to have effect, leaving a significant void in the act.
[Translation]
The most obvious impact of the ruling is that removing the 50-candidate threshold will likely result in an increase in the number of registered parties. This is not necessarily a bad thing, as it may lead to richer political debate and more choices for voters. The corresponding risk, however, is that groups may call themselves ``parties'' and seek to register, simply to gain access to the tax credit system and possible other benefits.
An organization could, for example, register as a party simply by fielding a paper candidate and complying with reporting requirements, even though it had no real intention of acting as a party and electing candidates. Not only is this objectionable as a matter of principle; it could well have a considerable fiscal impact. We need to ensure that the public purse is not vulnerable to this sort of abuse. Equally important, we need to preserve Canadians' confidence in the integrity of our electoral system.
I would also point out that failing to respond legislatively now would likely require further recourse to the courts. First, the government would likely have to apply to the Supreme Court to request an extension of the suspension period. There is no guarantee this extension would be granted. Alternatively, the courts might have to provide guidance on the applicable rules from that date forward. In any event, the absence of a timely legislative response would create uncertainty as to the rules for party registration and undermine the proper functioning of our electoral system.
This is why the government has brought forward Bill C-3. The bill consists of two key and inter-related components. First, it provides new registration criteria that reflect the Court's ruling, while ensuring the accountability of political parties. Second, it includes a series of measures to prevent abuse and allow deregistration of parties that are not genuine.
Let me speak briefly about these key components.
[English]
In its ruling, the Supreme Court indicated that candidate thresholds of any type are constitutionally problematic. This leaves Parliament very little room to manoeuvre in legislating a new number of candidates as a determinant of what constitutes a party.
For this reason, Bill C-3 replaces the 50-candidate threshold struck down by the court with a single candidate requirement. At the same time, the bill adds new registration criteria and other measures to ensure that parties seeking to register have a genuine interest in electoral competition. In other words, they are bona fide parties.
Most notably, the bill would, for the first time, add a definition of ``political party'' to the act. A party would be defined as ``an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.''
In addition, the bill increases the minimum number of party members from the current 150 to 250 and requires signed statements from those 250 members attesting to their membership in the party and their support of its registration. As well, parties would be required to have at least three officers other than the party leader and who provide their signed consent to act as officers.
The bill would also reduce the threshold for party identification on the ballot from 12 candidates to 1. This flows logically from reducing the registration threshold to one candidate.
In addition to the new registration criteria to replace the 50-candidate threshold, the bill also introduces new measures to ensure that political parties are genuine.
[Translation]
The second key component of Bill C-3 is a series of anti-abuse measures, intended to screen out fraudulent parties and protect the integrity of the electoral financing regime. Let me highlight a few of these provisions.
The bill includes a new offence for knowingly making false statements in relation to registration of a party. The party leader must provide a declaration of the party's objectives and their compliance with the definition of ``political party.'' In addition to the individual penalties attached to making a false statement, parties that make false declarations could be refused registration or be deregistered. As well, to keep them distinct from interest groups, parties would not be allowed to solicit or receive contributions simply for the purpose of redirecting them to a related third party.
Another measure would enable the Commissioner of Canada Elections, where he suspects that a party is not legitimate, to require it to satisfy him that it meets the definition of a party. Should the party fail to do so, the commissioner could apply to a court to deregister the party.
And as a key measure to protect the integrity of the system, the right of a party to issue tax receipts would be automatically suspended when an application for deregistration is pending. Judicial deregistration and liquidation would also be available as part of the sentencing process for certain offences under the act.
Finally, individuals — including party officers — could be held civilly liable if convicted of financial abuses, and they could be ordered to make restitutions to the public purse.
[English]
Normally, amendments to the Canada Elections Act come into force six months after Royal Assent, or sooner, if the Chief Electoral Officer certifies that all the necessary preparations are complete. In light of the court's deadline, however, Bill C-3 would come into force on June 27, 2004, unless the Chief Electoral Officer gives notice that he is ready earlier.
Before concluding, I would like to briefly respond to a couple of the key criticisms that have been advanced against the bill. First of all, during debate in the House and in committee there was considerable discussion of the new candidate threshold. Some members expressed concern that this threshold is now too low, and that a threshold of perhaps 12 would be better.
As I mentioned earlier, the Supreme Court left very little room to manoeuvre on this issue. The majority of the court indicated clearly, and I quote: ``No threshold requirement is acceptable.''
At the same time, the court drew a strong link between effective participation in the electoral process and the ability to vote for the candidate of a political party, no matter how small or marginal. The one-candidate requirement reflects the court's ruling. Any requirement above a single candidate would be at odds with the ruling and would face the strong likelihood of yet another Charter challenge.
Further, as I have noted, opening up our electoral system to more voices and greater voter choice is a good thing. Not only does it reflect the spirit of the Supreme Court's ruling, but it could make for a more vibrant democratic debate.
[Translation]
Another live issue at committee was the proposed definition of a political party, with some suggesting that no definition is required, or that its application will be too complicated for the Chief Electoral Officer. Let me be clear: the definition is essential and in fact provides the linchpin for many of the bill's key measures. Quite simply, in the absence of a numerical threshold, other qualitative factors must be introduced to identify whether a party is legitimate and truly serves as a vehicle for participation in the electoral process.
The qualitative criteria in the bill — most notably the definition — heed the court's message that it is not a party's size, but its nature and purpose, that are appropriate yardsticks for determining whether a party is genuine. Removing the definition would leave the party registration system open to abuse.
Abuse of the tax credit system could go unchecked, and there would be no basis to deregister fraudulent parties or suspend their ability to issue tax receipts. Nor do I believe the definition is unduly burdensome. In fact, it is carefully drafted so as not to speak of the organizations' ``primary purpose'' — which could indeed lead to controversial judgment calls. Instead, the definition requires only that running candidates for elections be one of the party's fundamental purposes.
The definition thus avoids unnecessary controversy as to what ``the'' primary purpose of a political party is and who should make that determination. In sum, the definition builds on the themes expressed by the Supreme Court — that political parties are defined by what they do: put forward platforms, make public policy proposals, and provide citizens with a vehicle to pronounce on these matters by voting for the party's candidate.
[English]
Finally, I would like to address the concerns of those who feel Bill C-3 does not go far enough in addressing other potential impacts of the court's ruling. In that regard, I have noticed that some ``buzz'' followed the House debate to the effect that even the government does not consider Bill C-3 to be perfect.
Of course, I cannot say that any piece of legislation is ever perfect; otherwise we could all be out of a job. We must approach the task of legislating with some humility, knowing that we do not have all the answers and acknowledging that circumstances can change.
However, I am convinced that Bill C-3 strikes the best balance possible under the circumstances, particularly in view of the limited time we have to respond to the Supreme Court's deadline. Doing nothing and simply allowing the court's judgment to take effect, without providing for a workable registration regime and anti-abuse measures, could jeopardize the integrity of our electoral system, at considerable public expense.
At the same time, it is also incumbent upon us to study the Figueroa decision further and determine what broader impacts it may ultimately have on our electoral system. That is why I have requested the Standing Committee on Procedure and House Affairs to look into the other issues of broader electoral reform once Bill C-3 is passed. Needless to say, I look forward to Senate input into this study.
Moreover, in acknowledging the need for further study, the government also introduced an amendment to add a two-year sunset clause to the bill. I must say, by the way, that this sunset clause was not in the original bill. It is the result of listening to the standing committee, which made a lot of sense in saying we do not want to have a temporary bill. We want to make sure we have an obligation to review it. I think it made so much sense that I quickly agree to a sunset clause on this issue.
This sunset clause ensures that there will be an opportunity to review the bill's operation and make improvements, where necessary. In the meantime, we will have responded to the court's ruling and ensured that our electoral system continues to function effectively.
[Translation]
I believe that Bill C-3 delivers a timely, targeted response to the Figueroa ruling, striking an appropriate balance between fairness to parties, on the one hand, and the need to preserve the integrity of the electoral system, on the other. It respects the ruling of the Supreme Court and facilitates democratic reform by ensuring greater fairness to small parties and greater choice for voters.
Mr. Chairman, I would now be pleased to take any questions the committee may have on the bill.
[English]
The Chairman: I have one question regarding the effect of Bill C-3 on third parties. As you know, last year we had Bill C-24, to change the limits for third parties on both national and district spending. If you look at the definition of ``party,'' it is fairly broad. What would stop them from obtaining, or declaring or applying for party status, and then having access to the much higher spending limits?
Mr. Saada: First of all, this is exactly what we would like to circumvent by having the registration and objectives of the political party and the reporting obligations, which are to make sure the party cannot be an improvised one. It has to be a political party. That reinforces the need for a true definition of a ``political party.''
Bill C-24 allows political parties to raise or to receive funds, with limits on who is providing those funds. Any organization that declares itself a political party and goes through the process will be subject to all these conditions. It is also the reason why there is an option; if it is not a true political party according to these standards, there is a possibility for it to be deregistered.
Senator Andreychuk: I am following up on the chair's comment. I fully agree that one had to attach some definition. However, when we put in here ``political party means an organization one of whose fundamental purposes is to participate in public affairs...'' I am not sure what the other fundamental purposes are, because they are not enumerated. Secondly, you hone in on the public affairs issue, which is one aspect of what I think a political party does. I wonder, where is the responsibility for someone who has access to funds to governance of the country — a guarantee of our Charter rights, et cetera. I think, certainly in today's society, it is more than the airing of ideologies or differences on issues that makes a political party.
I have been thinking of it in terms of what marks a democracy as opposed to other forms. It seems to me it is more than the ability to air public affairs, which seemed to be what the court was more preoccupied with. I think there is more to a party, and it causes me some unease that a single-issue person in conjunction with other like-minded people can get involved in the political process for their own ends.
There may be some public benefit, but are they fully aware of their responsibilities to our Charter, our Constitution, and to the democratic governance of our country?
I have put it in rather general terms but I think you know what I am getting at. It is more than public affairs.
Mr. Saada: Your question is eminently valid. A political party has to offer options to the population, to aspire to having some input into the political life of the country.
If we go to the substance of it, any organization that wants to have input into the political life of the country should have some tools with which to do it, as long as there are rules to frame its operation.
I believe this bill is opening the door to the possibility of having many small parties, and a political party is not necessarily aimed at governing. The main objective of a political party is not necessarily to govern. There are a number of parties that know they will not govern but are there to fight for a cause. We have the example of the Bloc Québécois.
Whether this framework we are proposing is sufficient to limit the potential slippage in this regard is something that we will have to work on and assess in the longer term.
Senator Andreychuk: I agree this opens up an avenue, which I support, for more dialogue and more debate among the disparate points of view we have in Canada. However, Bill C-3 talks about violations, but I call them manipulative violations — criminal intent to misuse the process and misrepresent. It seems to me that a signal has to be included that it is not necessarily just about governance, but as part of a democratic process in which you gain these rights to put forward a point of view, you also take on a responsibility to the common good, to the public interest and to the Constitution. That kind of balance is not reflected fully in Bill C-3. It does not say that freedom has a price; democracy has a price, and that is to act responsibly for the common good and national-purpose interest. It is not just governance, but also being part of the process.
Mr. Saada: Senator, you and I share ideals of what a political party should be, but is it for us to decide whether a political party makes sense or respects these values? Is it not for the population to decide, and therefore are you not making the argument that one objective should be to have the parties' policies or positions submitted to that population by fielding at least one candidate?
Senator Andreychuk: What I am asking is, is that the only criteria to gain that responsibility, and then what about the subsequent misrepresentations? It seems to me in the next two years, if we do not do it now, we will have to wrestle with whether a political party means ``an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.'' Is that what defines a political party in Canada? I think that is what the debate will be.
Mr. Saada: There is no easy answer. The only thing I can say at the present is if you look at any of the traditional political parties in Canada, of course they present candidates, but that is not the end in itself. It is a tool for promoting your own policies and aspiring to change the political picture.
The internal operation of parties is also part of the process.
I do not believe that you can frame the definition of a party to the point where you can hold them accountable for every single value the party will promote. It will be very difficult to do that unless you constrain the party so much that it is not free any more.
It is a grey area. It is very difficult to determine.
Senator Smith: I do not think this is directly on the point, but my curiosity is such that I cannot resist asking. Has the decision and then the review of the proposed legislation prompted this question: If you cannot have a minimum threshold in terms of the number of seats for which you are putting up candidates, what about the minimum number of seats to gain recognition as a party within a House? I suspect the answer would be that it falls within the purview of parliamentary privilege, but I never take anything for granted. I cannot resist satisfying myself there is no thin end of the wedge here.
Mr. Saada: I am hearing some words that I look forward to debating.
On page 11 of the judgment from the Supreme Court on Figueroa there is a very clear sentence: ``...the manner in which Parliament determines which political parties have official status in the House of Commons is not at issue in this appeal.''
Clearly, the Supreme Court made a distinction between the case at hand and the privilege of Parliament.
Senator Smith: It is not an issue. It sounds good, but I hope there will be no occasions down the road when we have to quote that citation back to them.
Mr. Saada: I am sure, senator, you will find the proper time to do that.
Senator Stratton: A rumour has been floating around for a while, about which the leader on our side had asked the government leader in the Senate, with respect to the Figueroa case. Was there an offer made by Figueroa to then-House leader Don Boudria that if the floor for the membership were dropped from 50 to 12, rather than below that, he would no longer pursue the case, and Mr. Boudria decided that rather than accept that offer, they would let the Supreme Court decide?
Could you answer that question for us?
Mr. Saada: First of all, to my knowledge, no such attempt was ever made. The second thing, which to me is a question of substance, is that the Figueroa case prompted the Supreme Court judgment. However, the Supreme Court judgment reflects its interpretation of our Charter and laws. In other words, whether or not this was going all the way to the Supreme Court, what is more important to me is the actual judgment of the Supreme Court.
To me, it is not a matter of arrangements between one and the other. Even if Mr. Figueroa had offered this agreement, which he did not, it would not have given us the benefit of the interpretation of the Supreme Court on this issue. I would rather have it than not have it.
Senator Stratton: That is curious and rather interesting — not that there was no deal being made between the two, but that you would rather have the interpretation and settle for the lower number.
On fundamental principle, one would think that you would want to decide what you could yourself without having to go to the Supreme Court for everything. On this issue, there is a point at which you should be able to say, ``We should be able to work this out between two parties and prevent it from going to the Supreme Court by arriving at some compromise.'' I thought that was the essence of what you try to do in instances such as these.
I would ask you to comment on that, if you could, or if you choose to. Perhaps you do not want to.
Mr. Saada: Are you asking me to comment on this?
Senator Stratton: Would you mind commenting?
Mr. Saada: With all due respect, senator, I am not relying on the Supreme Court to make legislative decisions. I say that when you make legislative decisions and you have information provided by the judgments of the Supreme Court, the hope is that you make better legislation.
Second, even if there was a deal that would reduce the number from 50 to 12, or whatever number it was, nothing could have prevented someone else from appealing it again and going all the way to find out what the Supreme Court felt about it.
The Supreme Court is not deciding what our legislation will be. The Supreme Court is giving its interpretation of what our Constitution says and whether or not our Canada Elections Act is in conformity with it. That is important information for legislators to have in order to draft a bill that will be as solid as possible.
Senator Stratton: My bottom-line concern is the growing perception that it is the Supreme Court that governs this land, not Parliament. That is real and exists amongst Canadians to a fairly large degree: Who is running this country? Is it the Supreme Court or is it Parliament? Decisions like these seem to marginalize the effective role of Parliament. That concerns me.
While we can respect the decisions of the Supreme Court, we also owe it to Parliament to ensure that the role of this place is not being diminished any more than it has to be. If we continue like this, it will have an impact on what Canadians think and believe about this place, and it is why we are seeing lower and lower voter turnout. There is an ever-increasing perception that Parliament is less effective and has less power. I think that is real. Perhaps you would like to comment on that.
Mr. Saada: Yes, senator. I sincerely do not accept the statement that the Supreme Court is running the country. We have become a constitutional democracy through the Charter and the system that we have adopted. This Charter and this Constitution were adopted by Parliament. The Supreme Court's role is to interpret the Constitution, which was a work of Parliament.
Once we have the interpretation by the Supreme Court, Parliament again has to address ways and means to respect its own fundamental law. The Supreme Court is not making a judgment on how it should be done. The Supreme Court does not tell you what should be done; it just tells you what is not acceptable. Then you must make a decision and find a legislative process to ensure that Parliament passes a law that is in conformity with the Constitution, which was itself passed by Parliament.
This is an important debate, and I am sure we have senators around the table who are experts and could re-intervene on the process. I hear what you say, and I heard a number of arguments along the same lines. The challenge that I would put before all of us is to think in terms of who made the fundamental law and who is legislating to ensure there is coherence between legislation and that fundamental law.
Senator Joyal: Mr. Minister, I noticed you said in your presentation that you wanted the standing committee of the House of Commons to study the Figueroa decision and that you would welcome Senate input. If it were a joint committee, we would have an opportunity to participate directly in that process. I am of the opinion that this decision is very significant in terms of its implications.
In my opinion, the principle outlined, especially by Justice Iacobucci, in this decision, which I happened to read and reflect upon last summer after it was published by the Supreme Court, might even question the electoral system as we know it. The implications of the principles would certainly preoccupy Senator Stratton. It is a unanimous decision; there is no doubt about where the court sits on this.
I would certainly have welcomed involvement, considering that there is a large reservoir of experience with electoral systems in the Senate. Many of us were involved previously in all kinds of electoral activities and campaigns. If you look around the table, you will see a fair representation of that. It is to be essentially a study, and the Senate is well placed to do that kind of reflection.
Do you see any way to change or to add to your approach or the mandate you gave, so that the Leader of the Government in the Senate could look at how we can participate in such a reflection?
Mr. Saada: Yes, this question is extremely important. First, let me explain why I referred the matter to the Procedure and House Affairs Committee. As you know, in the Democratic Reform Action Plan that I tabled on behalf of the government last February 4, we talk extensively about increasing the role of parliamentarians. At the time, we were talking specifically about the House of Commons. The Senate has its own way of doing things. One way to increase parliamentary responsibility, and that of members of Parliament, is to allow committees to not only intervene in reaction to a bill drafted from outside, but to work on actually drafting a bill. I have asked the committee members to come back with a draft bill on the implications of Figueroa and how the Canada Elections Act should be changed. I would very much welcome input from the Senate.
I cannot direct the committee to become a joint committee with the Senate because I have already asked it to take care of this within the framework of the House of Commons. There are a number of ways that this can be done. For instance, if the chairs of the Senate and the House committees would decide to study this matter together, to share the information instead of duplicating it, I would have no problem whatsoever with that.
We are talking here about a draft bill. The Senate can intervene at a number of stages. I am prepared to listen. I am very open-minded about that. I do not feel that I should impose that on the Standing Committee on Procedure and House Affairs of the House of Commons. Certainly I would welcome any initiative coming from parliamentarians to engage in this work jointly.
Senator Joyal: In the same vein, you will know that Mr. Figueroa wanted to question some other aspects of Bill C- 24 — I do not know which ones — the bill that we adopted last session.
I am informed that there is another group in Toronto, led by a professor at the University of Toronto, wanting to question the electoral system. They will use the decision in Figueroa extensively to support their contention that the electoral system of Canada might not meet a threshold — to use another word that kind of became a buzzword of the Supreme Court of Canada in relation to elections — that is consistent with the Charter.
Could you tell us quickly, according to any information you have, at what level of progress those court actions might be now?
Mr. Saada: I do not know the stage of the case to which the honourable senator refers.
Mr. Stéphane Perrault, Privy Council Officer, Senior Counsel, Legislation and House Planning, Privy Council Office: The trial stage has not begun and probably will not until the fall.
Mr. Saada: In terms of the substance of that matter, when I requested the Committee on Procedure and House Affairs to look at the implications of Figueroa, I chose my words very carefully so as not to close any door. I invited the committee to look at the big picture. Since I have not set narrow parameters, surely these cases will have an impact on the work of the committee.
Senator Joyal: I brought to your attention the letter that I sent to your predecessor in regard to the issues raised by Bill C-24. The court has stood those items, but has recognized that it might revisit them at the appropriate moment, that is, when there would be litigation. That is a concern.
As Senator Stratton says, I wonder if we are not in need, as a country, of an overall study of our approach to the system so that we are not always in a reactive mode in terms of those various cases that we know are in the field. These matters pop up, and each time we legislate something, someone looks to see if there is a Charter issue there and then moves on.
At some point, the impression is created that our system is not at all in accordance with the principles of the Charter and that we are dealing with piecemeal work. This is a bad signal, in a way. The democratic process must work within well-known, stable rules. This bill is self-explanatory, as you said. There is a sunset clause. We do not know whether in two years that bill will still be what we want. That is very important, especially from our point of view in the Senate. Many of my colleagues share the opinion that the system must be stable and sound. We can never prevent someone from going to court, as you quite appropriately said, but there is, at a minimum, an understanding that the various levels of the system should be stable to a degree.
Every six months there is another bill that touches on another aspect of the Elections Act. Why are we in this situation? How should we address that?
Mr. Saada: The point of Senator Joyal is valid. The implications of the question are far reaching. For instance, we know we have a case presently before the Supreme Court. We are waiting for the court's decision on the Harper case. This bill has implications for the spending of political parties in terms of television, radio and so forth. That there are many organizations that can become political parties by virtue of this change raises the issue of representation. Therefore, how our system is set up, who is voting for what and how you have representation in the House and so on, all of those issues are very important. A number of provinces are already working on them.
I know that we have limited time, but I just wish to refer to two or three cases. First, we know that at least five provinces have a minister for democratic reform, in one form or another. I had the pleasure of going to B.C. to attend one of the deliberation sessions of the citizens' assembly and how they operate in addressing the concerns that Senator Joyal raises.
We have a two-year sunset clause. I have asked the committee to report within one year of the draft bill. That will allow us reasonable time to actually look at the big picture. As I have not set any limitations on the study, I am opening the door for a broad study such as Senator Joyal outlines.
Senator Joyal: I will finish with the definition of ``political party.'' Clause 1 of the bill defines a political party as ``an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.''
My simple view of a political party is not that it is an organization; it is a grouping of citizens. The definition puts the emphasis on the structure, not on the people.
Clause 3 at the top of page 2 refers to the names and addresses of 250 electors. I understand the principles of the Supreme Court, but do we not go too far in the other direction? Should we not establish — I hesitate to use the word ``reasonable'' in terms of the number of members — but establish that in a more representative way?
The bill refers to 250 people. I know many organizations that could split themselves into many different parties all over the country with 250 people each, and we would end up with a situation whereby I do not know how we would devise our voting system, the ballot would be so long.
Should not the definition put the emphasis on the number of people rather than on the essential structure? It speaks of political parties as organizations, but ``organization'' is not defined, so we have to go to the common sense definition of what is an organization.
A political party is more a grouping of people than an organization.
Mr. Saada: There are two elements to the question. Senator Joyal said that a party is not an organization but a grouping of citizens. If you have a grouping of citizens that is structured and organized, it automatically becomes an organization. While I understand the philosophical differentiation Senator Joyal wishes to make between the two, at the same time, the only word we have to describe an organized group is ``organization.'' If you have a certain number of members, you have to have a person responsible, a leader, and all of these constraints allow for it to be recognized as a party. It becomes an organization.
As far as the size is concerned, again, I understand your argument. However, the judgment of the Supreme Court has been very clear: The number of members is totally irrelevant.
I believe that we had in the law a requirement for 100 members and now we are at 250.
Senator Stratton: I am sorry to interject. If the figure of 100 was acceptable before, what would prevent a group from going to the Supreme Court and saying, ``Look, they have raised it to 250 when it was 100. We think it should go back to 100, or it should go down to 50?'' What would prevent that from being a successful argument?
Mr. Saada: I will ask Mr. Perrault to answer, if you do not mind.
Mr. Perrault: First, any number is, by definition, arbitrary. If you look at various jurisdictions, Australia, for instance, has 500. Some have lower numbers. We had 100.
The increase to 250 is not to exclude small groups. Everyone agrees that 250 is small to begin with. We are not talking about large organizations. The reason for the increase is to make it clear that this must be read in conjunction with the signature requirements. This is a bona fide organization. This is really an anti-abuse measure to ensure that these groups that sign up for registration actually have enough people behind them who are willing to say this is serious — not in the sense of their platform, but that this is not a fraudulent group. We can find a substantive number of people who are willing to put their names forward and say, ``I am a member and I support the registration of the party.'' It is really an issue of accountability rather than size.
Senator Stratton: It is also challengeable in the court.
Mr. Perrault: Absolutely.
Senator Stratton: That is my point.
The Chairman: I will ask the officials to stay. Before the minister leaves, Senator Rivest did not have a chance to ask a question yet.
Mr. Saada: I would not miss that for the world.
[Translation]
Senator Rivest: When I saw this bill I wondered, given the problems of the current administration, whether the Liberal Party of Canada was having a hard time finding 50 people. I thought that maybe they wanted to pass this legislation to salvage what was left. Then someone told me that that is not what it was for, it was because of a Supreme Court decision.
I know that there have been rulings or challenges in some provinces. Are there similar limits in terms of the required number of candidates? Have there been any legal decisions on this point?
Mr. Saada: As far as I know, there is only one province in Canada without limits like these, and that is British Columbia. All of the others have limits of this kind.
Senator Rivest: Are those limits, given the Supreme Court decision, likely to be quashed?
Mr. Saada: Yes, in theory.
Senator Rivest: They have not been yet?
Mr. Perrault: In Quebec, there is a court case, but there was an interim stay of proceedings. The Government of Quebec said that it was working on a bill to settle the issue. That is what is to be expected.
Mr. Saada: That said, there is currently in Quebec an initiative that has not yet taken the form of a bill, but that overhauls the whole issue of representation.
Senator Rivest: We know that this legislation comes into force in June. Would this legislation apply if a spring election were called this weekend or next?
Mr. Saada: The legislation would apply, but new parties could not register because that takes six months. Right?
Mr. Perrault: Registration takes 60 days, and that is current procedure. The application has to have been made 60 days before the writ is dropped.
Senator Rivest: The possible election timetable has no influence on the application of this bill?
Mr. Saada: Not based on your spring election scenario.
Senator Rivest: At first glance, the requirements of the legislation appear not unreasonable to me, but the Supreme Court is not of the same view. I found that somewhat worrisome, given that it is for us to decide, after all. I understand that there is section 1 of the Canadian Charter of Rights and Freedoms. Have you thought about the notwithstanding clause?
Mr. Saada: I am told that the notwithstanding clause would not apply.
Senator Rivest: Because it is a matter of electoral law?
[English]
Senator Stratton: When your government was looking at the health care system, former Premier Romanow of Saskatchewan, as well as the Senate, did a report on health care reform. What would you say to the idea that perhaps this chamber should take a look at that issue as a second perspective on what you are having the House do? In other words, that we look at what should happen with respect to this independently of what the House is doing.
We have opened a Pandora's box here. What we are doing is engaging in a short-term, knee-jerk reaction. I do not think we have looked at the impact. I do not see any previous examination that indicates to me that I can have confidence in this bill yet.
I just do not see any evidence presented, on the House side particularly, to give me a high level of confidence. We know there is a sunset clause; I understand that. I know you are doing a long-term study. Perhaps two perspectives could take place, but I am concerned about the bill in respect of to whom we have talked and its impact in the short term. What did the House do with respect to this bill? All we are hearing is what the government has done. I do not see what the House itself did.
Mr. Saada: First of all, I appreciate the question on the issue of the Senate and the House of Commons. It touches on what Senator Joyal was alluding to a moment ago.
I gave you the best answer I could. I would be open-minded about whatever format the Senate and the House of Commons come up with in order to coordinate their work.
As for the second point, this bill went through a process, and the Standing Committee on Procedure and House Affairs heard the witnesses it felt it must hear to be informed on the bill. After scrutiny of the bill and hearing the witnesses, members of Parliament in their wisdom decided they would support it. Actually, that is the beauty of our system. Once that process finished, it came to your place. Another process is now taking place and we will see how the bill will ride.
I draw to your attention the fact that it would have been impossible, within the deadlines set by the statement of the Supreme Court, to address the full implications at great length. It would have taken months to do that. It would have been irresponsible for me, as a minister, not to assume that if we did nothing, we would create a real problem that would have cost taxpayers a lot of money. All kinds of pressure groups and lobbies could have declared themselves political parties.
We had to take quick action. I repeat: I do not believe this bill is perfect. It is an insurance policy, a safeguard. The real answer to the Figueroa case will come down the pipe before the sunset date is reached. I will need your help on that one.
The Chairman: Minister, thank you for taking the time to be with us and for sharing your views.
Honourable senators, I have an initial report from our legal counsel, Mark Audcent, with respect to Bill C-20. As you will recall, Senator Joyal raised the question with respect to Bill C-20 of whether we would need a royal recommendation. The report will be ready for distribution to colleagues tomorrow morning in both official languages. Right now, I can tell you that the essence of his opinion is that we do not need a royal recommendation. Do we need to hear from him, or, once colleagues have had a chance to read the report, can we go to clause-by-clause tomorrow?
Senator Joyal: I personally have no problem. We can read the opinion. You say there is no problem. I do not doubt the conclusion.
The Chairman: Mr. Audcent says that. Obviously, if there is an issue with his conclusions, we will not go to clause- by-clause consideration. If there is no issue, we will proceed.
Senator Joyal: We will see the precedents and so forth.
The Chairman: We will discuss it tomorrow morning.
The committee adjourned.