Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence for April 29, 2004
OTTAWA, Thursday, April 29, 2004
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:59 a.m. to consider Bill C-3, to amend the Canada Elections Act and the Income Tax Act as well as Bill C-20, to change the names of certain electoral districts — clause-by-clause study.
Senator George J. Furey (Chairman) in the Chair.
[Translation]
The Chairman: Honourable senators, we have a quorum. This morning, we continue our study of Bill C-3, an Act to amend the Canada Elections Act and the Income Tax Act.
[English]
Honourable senators, following Bill C-3, we will have further discussions on Bill C-20. As agreed yesterday, we will proceed to clause-by-clause consideration if all members are satisfied with the opinion received this morning from the Law Clerk and if answers concerning the issue of Royal Recommendation are satisfactory.
I welcome once again officials from Elections Canada, Mr. Jean-Pierre Kingsley, Chief Electoral Officer, Mr. James Sprague, Senior Practitioner and General Counsel, and Ms. Diane Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel.
Mr. Kingsley, please proceed.
Mr. Jean-Pierre Kingsley, Chief Electoral Officer: Thank you, Mr. Chairman. My presentation should take six minutes. It is a privilege for me, as always, to appear before this committee at this time during your study of Bill C-3, to amend the Canada Elections Act and the Income Tax Act. I wish to thank you for introducing the two senior officials from my office who are with me today. I will also say that I appreciated having two days instead of one day to prepare for this appearance. Sometimes, matters are more complex than initially they appear.
Today, I shall discuss briefly the implications of the ruling of the Supreme Court of Canada in Figueroa v. Canada. I shall review the additional responsibilities that this bill would assign to the Chief Electoral Officer.
In introducing this proposed legislation to the Senate on April 20, 2004, Senator Mercer underscored the importance of having legislation adopted before the June 27, 2004, deadline set by the Supreme Court of Canada. This is also the date on which these amendments are to come into force. However, the bill also provides that the new registration rules come into force before that date, once I have made the necessary preparations for the proposed act to be brought into operation and once I have published a notice in the Canada Gazette to that effect.
Senator Mercer also mentioned that as a result of an amendment adopted by the House of Commons, the party registration regime to be instituted by Bill C-3 would expire after two years. Furthermore, the Honourable Jacques Saada, Leader of the Government in the House of Commons, announced when the bill was tabled in the House of Commons that the government intends that the party registration rules be re-examined by the Commons Committee on Procedure and House Affairs during its one-year review of the electoral process. This would allow Parliament to adopt revised registration rules before the two-year sunset period expires.
The effect of not adopting the proposed legislation before June 27, 2004, is that should an election be held after that date, the party registration regime would effectively be frozen. In particular, the Chief Electoral Officer would not be able to register any party that had filed an application for registration that had acquired eligible party status before the election because there would be no legally valid provision for registration. Any party that is now registered, but did not field 50 candidates in a general election, would nevertheless retain its registered status because there would be no legally valid provisions for the registration. It would be a freeze — an emptiness — for those two aspects.
In order to increase access to the electoral process, this bill would allow any party that runs at least one candidate in an election to be eligible for registration. Additional requirements would be added to the application for registration: a resolution of the party appointing the leader, certified by the leader and another officer of the party; the names and addresses of all the parties' officers, of which there must be at least three in addition to the leader, along with signed consents from all the officers; the names and addresses of at least 250 members, with a signed declaration by each member; all registered parties, new and those now registered, would have to resubmit this information every three years beginning in 2007; and parties that are now registered would have to submit all this information within six months of the bill coming into force.
[Translation]
This bill would also mean that, for the first time, the Canada Elections Act would include a definition of a political party. It has been possible to date to regulate political financing without such a definition. The proposed definition of a political party is linked to a number of administrative and enforcement provisions in the bill. The party's leader would have to submit a declaration that, consistent with the proposed definition, one of the fundamental purposes of the party is:
[...] to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.
This declaration would have to be resubmitted every year by all registered parties. In order to decide whether a party qualifies for registration, the Chief Electoral Officer would be allowed to ask its leader for any relevant information to enable him to consider the party's fundamental purposes. This information would include the party's constitution, its program and information about its funds and other activities.
The Chief Electoral Officer would also have the power to deregister any party at any time if he is not satisfied that it has 250 members and at least three officers in addition to the leader, or if the party fails to file the 250-member declaration and/or the declaration about the party's fundamental purpose.
In addition, the Commissioner of Canada Elections would have the authority to apply to a court if he had reasonable grounds to suspect that the party did not have the required fundamental purpose. If the court found that to be the case, the party could be deregistered.
More important, the responsibilities that the bill would assign to the Chief Electoral Officer and the Commissioner could lead them to examine the purposes of political parties. On the question of preventing abuse by those who might seek registered party status simply to give out income tax credits, I would point out that a number of controls already exist. Under section 245 of the Income Tax Act, an income tax credit claimed for the wrong purposes can be disallowed. There is also an offence for tax evasion. These provisions are deterrents to the formation of political parties solely for the purpose of handing out income tax credits to contributors.
In addition, the various public reporting provisions in the Canada Elections Act, expanded last year by Bill C-24, require detailed audited financial reports that allow the Chief Electoral Officer and, if warranted, the Commissioner of Canada Elections, to investigate possible fraud by political parties and other entities.
Before we go to the round of questions and answers, I want to tell you that I had the opportunity this morning to review the transcripts, or at least the more relevant portions, and I would like to clarify some of the responses provided with respect to the political parties and the impact of this bill should is be passed into law before the next general election is called.
I would like to circulate three sheets. The first lists the nine, currently registered political parties that are authorized to issue tax receipts and that are covered by the legislation. On the left is the abridged form of the party name as it appears on the ballot. Also listed is the party's acronym and full name, as it appears in the register.
On the second sheet you will find two names: the Christian Heritage Party and the Progressive Canadian Party. The abridged form is the Christian Heritage Party and the PC Party. Both would benefit from the bill now before you, assuming it becomes law before the next general election. By fielding candidates, these two parties would become registered parties and would thus be authorized to issue tax receipts and would be eligible for a range of benefits, including credits if they manage to garner 5 per cent of the votes in a given electoral district, as well as reimbursement of 60 per cent of their party election expenses for the next general election. Furthermore, candidates, even if there is only one candidate, would benefit if they managed to win 10 per cent of the votes cast.
The last sheet contains the names of five parties that have yet to attain eligible party status under the Elections Act, but that have filed the required applications within the 60-day deadline. We are now in the process of verifying the 100 names submitted by the five parties. If, once we have completed the verification process, we determine that these 100 individuals have agreed to support the parties in question, as evidenced by their signature, and, provided the bill is passed, these parties will be granted registered party status. This provision will apply only if the parties have the backing of 100 people and a candidate. That just about covers the immediate scope of the bill.
Yesterday's discussion focussed on the 60-day deadline and on the minimal impact this would have on parties filing an application. Five parties have already made their intentions known and two are eligible, as you can see from the list, given that they have met the criteria. Five additional parties will benefit from the legislation if it is enacted before the next general election.
I will now be pleased to answer your questions.
[English]
Senator Lynch-Staunton: Mr. Kingsley, could you clarify what you just showed us on page 2? I understand page 1 are the existing parties, but on page 2 you say that they have already complied with all of the requirements of this bill; is that correct?
Mr. Kingsley: That is correct, with the present statute. The present statute required that they provide 100 names.
Senator Lynch-Staunton: Under the present statute they qualify. If there is an election held before the bill is passed, what will happen?
Mr. Kingsley: If the election were held before the bill comes into effect, these two parties, to become parties registered under the act, would have to field 50 candidates.
Senator Lynch-Staunton: Yes, all right. They qualify under the existing statute; is that right?
Mr. Kingsley: That is right.
Senator Lynch-Staunton: Thank you. That is the part I missed. The third page is still being looked at.
Mr. Kingsley: Five parties under the present statute are being processed that could flip into that second page again, under the existing scheme.
Senator Lynch-Staunton: That clears that up, thank you.
No matter when the bill is passed or becomes law, how long would it take to implement it?
Mr. Kingsley: I have had a preliminary look at that, senator. Unless there is something major that has escaped all of us, and that is why I appreciated having more time, it is a matter of hours.
Senator Lynch-Staunton: If you had read the transcript, after Senator Mercer's presentation I asked him to clarify the coming into force provision. In your briefing book it is answered, but I am still somewhat confused. As I understand it, the Supreme Court gave a one-year delay to have Parliament respond to its decision, which is before us now in legislative terms. Paragraph 2 of clause 27 says that this act comes into force on the day that it receives Royal Assent if that day is after June 27.
The bill could only be given Royal Assent, say, six months later, for whatever reason, and would only come into the day it is given Royal Assent, which is six months after June 27. Is that still honouring the Supreme Court's instruction?
Mr. Kingsley: In my view, senator, what would prevail in the interim would be the legal vacuum for inability to deregister and inability to register.
Senator Lynch-Staunton: That would be your problem. Would the Supreme Court not reprimand the Crown for not giving Royal Assent?
Mr. Kingsley: I would suspect that only the Supreme Court would be able to answer that one, not I.
Senator Lynch-Staunton: Why was this wording put in?
Mr. Kingsley: I do not know that. The minister or someone from his staff should answer that.
Senator Lynch-Staunton: It is causing or could cause you a problem, could it?
Mr. Kingsley: The point that I tried to make, and that is highlighted by the earlier question that you raised about when would I be able to do this, once again I will be called upon to make a decision about implementing. That has a direct impact on parties immediately, the moment this is done. If there were a fixed date in the statute, then that would be Parliament that has decided that, and not the Chief Electoral Officer called upon to do that. It is that type of judgment, which I am ready to exercise, but which is not always easy to make. That sometimes leads to an apprehension that judgments are being put into the hands of an officer of Parliament that might best remain in the hands of Parliament. I do not know how more precisely I could have put that.
Senator Lynch-Staunton: You have as always given good answers. Maybe Ms. Davidson could find out why this loophole — that may not be the right term — that allows for any delay in Royal Assent, which is in contravention of the June 27 date, is allowed?
Mr. Kingsley: I would prefer, Mr. Chairman, with your permission senator, that this question be put to the minister and his staff.
Senator Lynch-Staunton: Unfortunately, I could not be here when the minister was here. Perhaps we could write to him or communicate with him and obtain clarification that way or ask him back.
Mr. Kingsley: I do not feel that we are the party to ask that question of.
Senator Cools: I have a supplementary question.
Mr. Kingsley, on Senator Lynch-Staunton's point, where we have the decision of the Supreme Court of Canada with respect to sections 370 and 385, would you read those sections down to 1 from 50 if this act were not in force?
Mr. Kingsley: I am advised, as previously I was advised and we are being consistent here, that what we have is a vacuum if there is no law.
Senator Cools: My apologies for being late.
I am just tuning in to what Senator Lynch-Staunton was saying. I am a little behind, I have been busy with other matters, so my study of this bill is somewhat tardy.
I understand the conversation just now was about paragraph 93 — and I am sure Mr. Kingsley would know — of the judgment in Figueroa?
I have paragraph 93 in front of me, which says:
In the result, the appeal is allowed with costs and ss. 24(2), 24(3) and 28(2) of the Elections Act are declared unconstitutional. The declaration of unconstitutionality is suspended for 12 months in order to enable the government to comply with these reasons.
It does not say "Parliament''; it says "the government.'' Perhaps last night the minister addressed this paragraph. My understanding is that the Supreme Court of Canada has no power to order Parliament to do anything. My understanding of our system of governance is that Parliament is not subject to the courts. I am just wondering, because we have been told, Mr. Chairman, on several occasions that the Supreme Court ordered Parliament to fix the law, or whatever. I should like to get it clarified, because the courts frequently use government.
As a matter of fact, I am working on the case right now, and the courts frequently use the terms "government'' and "Parliament'' interchangeably, as so many of the lawyers do. It is a common thing and it is a matter that is needs our attention.
Mr. Kingsley is looking at me in a very puzzled way, but I just wonder what constitutional authority the courts have to make these orders. There is nothing whatsoever in the Charter of Rights that gave the courts the authority to do this sort of thing. I wonder, Mr. Chairman, if we could have a few witnesses on this very critical question.
The Chairman: We will have to take your suggestion under advisement, Senator Cools.
Senator Cools: Whom do we have to advise? The committee is here.
The Chairman: I do not want to take the time to discuss future witnesses while we have Mr. Kingsley here.
Senator Cools: I can defer to someone this time, but I could come back to the point because in the Constitution of Canada, unlike the United States of America, there is no judicial power.
The Chairman: Senator Stratton.
Senator Cools: Silence.
The Chairman: In fairness, Senator Cools, this is not the forum for debating future business of the committee, and we will take your suggestion under advisement but we will talk about it.
Senator Stratton: I am concerned about the impact of this bill, not just in the short term but the long term. I recognize there is a two-year sunset clause with respect to this bill, and I also recognize that the House of Commons is embarking on a study of the future of this bill. Nevertheless, when you and your office look at something like this in this particular bill, reducing from 50 down to one, do you get the sense that there will be a proliferation, despite the fact that there are standards for access as a party, with the number of members, the executive, the leader, et cetera.
Have you had a chance to examine the potential impact of this bill from an economic standpoint, number one, and number two, what are the scenarios that are likely to happen with this bill? I know these are hypothetical questions, but I still think this should be the responsibility of this committee to at least discuss and examine these aspects.
Mr. Kingsley: Mr. Chairman, in response, my office has not done an economic impact study of this bill because it is very hard to foretell what the impact would be. One may have an impression, but because the formation of political parties is greatly facilitated — one candidate, 250 signatures, requirement for the CEO to verify the purpose that it is greatly facilitated — it is not possible to foretell all the changes that this will bring.
You are raising a point on which — because I have to provide a full answer here — I must signify the same apprehension that you have about the long-term impact. We are dealing here, in my view, with something that is at the core of the Canada Elections Act, the definition of a political party. So far, we have never defined a political party under the statute. We have made certain conditions exist, and if they meet this condition they are a party. The conditions were obviously too onerous in terms of what the Supreme Court considers to be a requirement; hence, what this bill attempts to do is to say there are really two safeguards that we are seeing. The first is what I have said about the Income Tax Act, the ability to control fraud, et cetera. The second one is giving the Chief Electoral Officer and the Commissioner of Canada Elections — mainly the Chief Electoral Officer, especially at the initial part — the ability to pass judgment about whether or not this is really a political party. Those are the two safeguards that have been put into the bill.
At the same time, we know that we have a regime that effectively makes it such that one must take a broad-minded view of this. One cannot have a restricted view, even with the tests that are there, about what constitutes a political party. The Chief Electoral Officer will have to be inspired by this, whether this one or any other in the future. When we say that the statute has two years in existence, we have to recognize that when a statute exists patterns become established. It is very hard to put the toothpaste back in the tube.
Those are my apprehensions, which I have shared as honestly as I could, about this bill.
Senator Andreychuk: That is something I should like you to expand on. We have spent decades trying to get the electoral commission as neutral as possible, and having worked in other countries, on electoral commissions, the Chief Electoral Officer having to make almost political judgment taints the process. How do you intend, if this is enacted, to interpret political purposes? Will you be publishing guidelines?
You are talking about inspiration. What kind of inspiration would it take for a neutral electoral officer to deem something that is essentially undefined and political in nature?
Mr. Kingsley: Madam senator, your question leads me to reconsider my answer about being ready to implement this within hours. If I have to produce guidelines or criteria, I have not even begun to do this. If I have to do this before I say that I am ready to implement this statute, then I can tell you I will not be ready by June 27 most probably — that is, if your question leads me to the conclusion that I must have these things.
On the other hand, if it is just a matter of changing the forms, changing my Web site, eliminating references to what constitutes a political party and changing them to this one in the different literature I have, those are things that we can flip over in a matter of hours.
However, if I have to develop those things before, then it is a theoretical discussion about whether or not I will be doing it before June 27, I most probably will not, unless we focus just on that.
[Translation]
Senator Rivest: Is it appropriate to assign to the Chief Electoral Officer the responsibility of examining the purposes of political parties? You mention this on page 5 of your presentation.
Are you pleased with this new responsibility? Would you prefer that the Chief Electoral Officer not be called upon to examine the aims of a group of individuals calling themselves, for the purposes of the legislation, a political party?
Mr. Kingsley: I addressed this very issue when I appeared before a House of Commons committee. If this authority is granted to a Chief Electoral Officer, he will exercise it without hesitation.
Members of Parliament and Senators have to understand that this represents a major shift in the role of the Chief Electoral Officer, one that will bring another dimension to the job.
This bill is important in two respects.
Firstly, there is the fact that it changes the definition of a political party, a fundamental consideration and secondly, its amends the role of the Chief Electoral Officer.
It was my duty to bring these two considerations to light and I have done so. This authority now falls to an officer of Parliament. As a result of this legislation, the Chief Electoral Officer will speak out more often than is now the case, a situation that could have political and judicial ramifications. In my opinion, the position would shift to another level, quite beyond what is provided for in the Elections Act.
[English]
Senator Stratton: I asked the minister about this yesterday because it concerns me, too. We have a dropping percentage of people who vote election after election. My concern with a bill like this is that, once again, it is seen by the population of Canada as the Supreme Court of Canada determining the laws of the land, a perception that cannot necessarily be proved. Nevertheless, that is the perception, namely, why are we worrying about Parliament because the Supreme Court determines what we can or cannot do? I know that you are concerned about voter turnout on an election-by-election basis because it is trending down over the years.
Does it concern you that, once again, we have the Supreme Court determining what Parliament can and cannot do? Are you concerned about the impact this will have on the reaction of Canadians, who may be saying that this is another straw on the camel's back?
Mr. Kingsley: The studies that we at Elections Canada have financed demonstrate that that phenomenon is for 18 to 24 year olds. It is restricted principally to them in that 95 per cent of the drop is in that category. The reason you have invoked is not a reason that has been flagged as such. Perhaps more detailed studies would indicate that we should look at that. However, that has not appeared yet. It is not a concern I share in the way that you have expressed. It is not up to me to make that kind of judgment either.
The Chairman: Thank you, Senator Stratton. I think that actually borders on the point Senator Cools was making earlier. There is probably time for a discussion of that in this committee.
Senator Stratton: As I said yesterday, it is almost like the Romanow-Kirby question.
Senator Joyal: Yesterday, we heard from the minister. This issue of the definition of political parties and the role that is vested with you is a fundamental element of this bill and the new regime. I will try to put my question in legal terms.
When an officer of Parliament is given the determination of an issue that has major impacts on the rights and freedoms of people, as Senator Andreychuk has mentioned, you have, in my opinion, to have two specific elements present to ensure that the process does not only look sound but inspires the trust of citizens. Thus, you need a set of criteria. That is clear. You also need a due process to ensure that, when a person applies, that person can be heard and that there is a contradictory presentation and so forth. Once the decision is taken, it will appear to have satisfied the fundamental principles of justice, which is at the core, of course, of this bill.
If we are to vest with you that new responsibility, for the sake of your own protection and for the sake of the credibility and trust that you have to inspire in the Canadian public, you need those two elements to be sure that, as I say, you remain above the fray in your decision. There will be many important issues that will be raised in such a process.
Let us take, for example, the name of the party and the acronym that appears on the ballot. The first thing you want to avoid is confusion as to name. If it is so easy to register a political party, then some people might be tempted to fabricate a name that comes so close to the name of another party that it may confuse the voter. The decision on the name is a fundamental decision in terms of the definition of a political party. I say that because the brand name is more or less the asset of a party.
When you come to the decision as to a name, there has to be a clear set of criteria and a process so that that might be the object of a reliable decision.
In my opinion, the challenge that confronts you is to come forward with an approach that would maintain your capacity to remain totally trustworthy in the eyes of the Canadian public when you exercise that new responsibility of defining a political party, as well as in examining the purposes of political parties. The bill is very limited in its purposes. It is defined in clause 1, which is to present at least one candidate. It might have other purposes as well, since the text, in part, reads "whose fundamental purposes.'' Therefore, it is one of the purposes. You will have to examine other purposes, but there is no direction in the bill as to which other purposes they might be.
As you said yourself in your presentation, you will be led to look into the constitution of those parties, how they are open to the public, how they sell membership cards, how easy it is to be a member of the party, as well as all kinds of other issues. That will be very important in the conclusion that you will reach at a certain point in time.
How can we be satisfied today that by voting for this bill all the elements of that approach that are now given to you will be satisfactory for the purpose that this bill provides, which is to make democracy easier in Canada?
Mr. Kingsley: Mr. Chairman, that goes to the heart of the matter I have been describing. The statute confers authority on the Chief Electoral Officer to exercise these judgments. There are some criteria quite generally spelled out in the statute as to the purpose of a party, which is what it says and no more.
With respect to due process, there is nothing stipulated in the bill before you about the right of hearing or whatever.
In 1992, when the parliamentary committee was looking at amending the statute, there was previously an opportunity for the Chief Electoral Officer to have discretion about deregistering a political party. I recommended to that committee that that authority be removed from the Chief Electoral Officer and that the law be specific as to those factors that led to de-registration. The parliamentary committee accepted my advice at that time. That is as best I can answer your question, sir.
Senator Mercer: Mr. Kingsley, my recollection, having registered a political party a number of times over the past few years, is that criteria is already in place. Criteria has been in place as to what is required for registration, et cetera. We have changed some of the rules here by making it four officers including the leader and added a definition.
I do not see the need for a lot of work to be done by you or your officials because a fair amount of the work is already in place. You need to scour it for some changes that this bill would bring into effect, but I do not see any great problems because of registration. Registration itself has been a fairly streamlined process over the past number of years.
Mr. Kingsley: It has been, and in my view it is because the criteria are spelled out in the statute. You need this person, that person, their names, the name of the auditor and the name of the official agents. However, this bill asks that the Chief Electoral Officer be satisfied about the objectives of the party and about a number of things that I mentioned in my introductory remarks.
That brings me to the next level of judgment, which I have flagged to this committee and to the other committee as well, and on which I am ready to act, if called upon to do so.
Senator Mercer: I suggest you already have a fair amount of that information. You would have available to you, if you do not have it in your possession, the constitution of the Liberal Party of Canada and the constitutions of the former Progressive Conservative Party of Canada and the former Alliance Party, which state their purposes. I would assume that the New Democrats would have similar definitions wherein they do state in their purposes the purpose of getting people elected to the House of Commons. It seems to me that you already have that information.
Mr. Kingsley: The concern may be less with what I will call the established parties, the five who are in the House of Commons, than with new parties and making sure that their objectives meet the statute and that kind of judgment. It is less with the renewal, even though that may apply for existing parties that do not have representation in the House. There is a clear attempt in this legislation to consider them all on the same footing, which is very important for the statute. That is the aspect that I wanted to flag.
Senator Joyal: Regarding the definition of what is a political party — maybe I should have done that work before coming in this morning — were there any recommendations in the Lortie commission, which tabled its report almost 14 years ago now and would have made recommendation on the strict elements of what is a political party?
Mr. Kingsley: I am going by memory here. We did not review this before coming in here. Under their recommendations, there was a need to provide the constitution of the party, but I cannot remember that there was a requirement to go into the purposes to the same extent. I could review this.
The letters patent and the bylaws had to be provided as well, and 5,000 signatories who are also members of the party were required. The 50-candidate rule was recommended for maintenance.
Senator Joyal: Yesterday, as you may have read in the transcript, the issue of the 250 members was raised, and the answer we got is that it was not increased from the previous 100. As you mentioned yourself, you processed the two other parties here, the Christian Heritage Party and the PC Party, on the basis of the 100-membership number.
I do not recall that the Figueroa decision mentioned specifically 250, so that number comes from somewhere. Somebody has made a conclusion based on some facts to come to that 250 number. It is such a difference between the 5,000 names of before, which was much broader in terms of popular support than 100.
What is your reaction to that 250? Is it your interpretation of the judgment that that number could be increased without jeopardizing the letter and the spirit of the decision?
Mr. Kingsley: Since you are asking me for my opinion, whatever number is arrived at must meet the Supreme Court test about relative ease of access to political party formation.
With respect to where that precise number comes from, I think the minister testified previously, when he appeared in the Procedure and House Affairs Committee of the House. I can only ask that you be provided with a copy of that transcript because that number comes, obviously, from the government.
I think the test we will have to come out with will have to be thought about to see what are the reasonable hurdles or reasonable barriers that provide Canadians with some security that a political party is a political party, not something else masquerading as a political party. There has to be some test of public support for the establishment of a political party. One must remember that, under our regime, a candidate need not be part of a political party. An individual can be an independent candidate, a person who has ideas to put forward. If someone has ideas to put forward ideas and wishes to put them forward, he or she can go ahead. If you get 10 per cent of the votes, at the next election you get 60 per cent of your expenditures reimbursed, and 50 per cent thereafter. It has been 50 per cent for a long time.
All of these values have to be reconciled, and I cannot tell you that I have reconciled them in my own head at this time. It is something that I think we should be looking at, as a country. What is the definition of a political party that meets these tests?
Senator Joyal: In fact, if I understand well what you say, any individual, if he or she satisfies the provision of the electoral act, can be an independent candidate and then only the name of the individual appears on the ballot. For somebody to have, under that name, the name of his or her party, then, of course, you have something else on the ballot. If you have something else on the ballot, it shows that you have, at least, as you say, some kind of public support. That is why there is additional information under the name of the candidate on the ballot, if I want to remain true to the spirit and letter of the Figueroa decision.
To me, the test of the definition of the political party is an important test because it adds additional information on the ballot for an elector to decide where he will cast his ballot. It is in that context that the definition of the public support is so important. In my opinion, the court decided that one is enough to be a party, but the court is not that clear on the basis of the measure of the public support needed to come to that one candidate. Unless I am mistaken in reading the judgment, the way to define the public support is still left in a grey zone.
Mr. Kingsley: Yes, it is. I would even say that when one goes to the conclusion that one candidate is sufficient to form a political party, then, as I have read the court judgment, the court said that whatever other number is put forth must have associated reasons with which to sustain it. One could even say that one is too many unless you can justify one.
Maybe the answer is 10, if we can come out with a rationale for 10 that would meet the test. Obviously, it will require a lot of work, and maybe it would be practically impossible in light of the judgment. I read them to say, "If you come out with another number, be able to justify it.'' So one is not automatically that number.
Senator Lynch-Staunton: I have a quick question that, again, I should have directed to the minister. I would have done so had I been able to be here yesterday. I am sure you are familiar with what I will bring up. I want you to confirm or clarify that, at one time during the court proceedings, the appellant suggested to the government that the threshold should be at 12. The appellant would withdraw his action if the threshold were reduced from 50 to 12. From what I understand, the government refused that and proceeded with the case with the result that we have before us today. Can you clarify that or confirm that or deny it?
Mr. Kingsley: I can do none of the three, sir, because I do not know. I cannot deny, I cannot clarify and I cannot confirm, because I do not know. That is precisely a question to put to the minister.
Senator Lynch-Staunton: I think you are very wise not to get into that subject.
Mr. Kingsley: If I knew, I would have to answer, but I do not know.
Senator Lynch-Staunton: Did you hear anything along those lines at any time?
Mr. Kingsley: I cannot remember that. I really cannot, and I have a good memory.
Senator Lynch-Staunton: Yes, I know.
Mr. Kingsley: Oops — but it is a forgiving memory.
Senator Lynch-Staunton: And so are you.
Senator Cools: Thank you, Mr. Chairman. I should like to say that the questions that are emerging on this particular bill are indeed complex and very difficult. I hope this committee will give them the quality of study and consideration that they deserve.
I should like to go to Mr. Kingsley's statement about the reconciliation of values. I would have said the reconciliation of principles, particularly the principles of governance. I have three questions and I will put them to you because they are related.
I will put them to you for the sake of clarity and brevity. Perhaps then you can speak to them as you wish. The first question is the following. The role of the courts is supposed to be a very circumscribed role. My question has reference to a bill passed here a few weeks or months ago; I think it was Bill C-24 on party financing. That bill essentially changed the structure of party financing in this country and shifted the onus for bankrolling and financing of parties in Canada to the public treasury, to the Consolidated Revenue Fund. This is a very important subject matter, Mr. Chairman.
My first question to Mr. Kingsley is the following. What impact would this new bill have — if it were to pass, God forbid — on the phenomenon of party financing, particularly the drawing down of money from the Consolidated Revenue Fund? This bill, from what I can see, is the result of a court order. My understanding, Mr. Chairman, is that the courts have many powers, but one of the principles of our system — and he was talking about reconciling the principles — is that courts have no power to draw down on the Consolidated Revenue Fund. The phenomenon of the appropriation of tax dollars and the taxing of Canadian citizens is reserved exclusively to Her Majesty in Parliament.
To some, this may seem arcane and difficult, but it is one of the fundamental principles of parliamentary democracy. These parties that the courts are saying may now be created will also be calling on the Consolidated Revenue Fund. That is indeed revolutionary. That is the first question. I am building on your reconciliation of principles. I am talking about the phenomenon of the courts causing the taxpayer to be taxed. That is one.
Second, again on reconciliation of principles, our system of governance is supposed to be one of parliamentary ministerial responsibility. Some would question whether it is authentic any more. One need not be too perceptive nor too smart to understand that the system of ministerial responsibility was built to be operated on fewer parties, rather than more. The system of ministerial responsible government simply could not exist with 50 or 60 parties in the House of Commons. It simply could not work. In fact, it could be argued that the system was intended to be for two or three parties.
I wonder if Mr. Kingsley can give me any help on that. This bill is based on the principle that one person can be a political party. I suspect we will see a proliferation of political parties. Perhaps I could become one. I should like him to answer that.
The third question, Mr. Kingsley, has to do with the interface of the first question on the Consolidated Revenue Fund. I want to ask about the preeminence of representative institutions in defining the electoral process.
I am sure Mr. Kingsley knows that these electoral commissions are really quite a recent phenomenon, such as yours. It was not too far back in the distant past when elections were conducted under the supervision of the House of Commons, in particular, the Speaker. The commissions were created, Mr. Chairman, to be able to go forward with a little bit less partisanship; however, the principle was always that the representative assembly of the population should be pre-eminent. That is why many of those functions were given over. That is one reason why Mr. Jean-Pierre Kingsley supposedly became an officer of Parliament, even though we do not really know what that means.
There was a real attempt to keep this exercise of electoral business within the purview, within the superintendence, with the preeminence of representative institutions, particularly the House of Commons. Since then, a lot was done by legislation and the Senate.
Has anybody paid any attention to these extremely significant issues that speak to the foundations of our own system of governance? Maybe the questions are too arcane or too difficult; I do not know. Can Mr. Kingsley give me any insights into those three factors — the needs of ministerial responsibility of government, in other words, the needs of the Constitution; the need to keep the appropriation of taxpayers' dollars in the hands of Parliament and out of the courts' hands; and, third, the phenomenon of the supervision of electoral business of the country under Parliament.
Mr. Kingsley: I shall attempt to answer all three questions, but I am appreciative of the fact I may have to answer them in a different order than they were raised because some of them may overlap.
It is important to remember that the Supreme Court decision is a decision striking down certain provisions of the statute. The decision was that the striking down would come into effect one year after the judgment. In order to give both the government and Parliament an opportunity to change the statute, no order was given to the government or to Parliament to change the statute. The court did what it does when there is a constitutional challenge if it feels that the Constitution has not been respected — that is, it struck down provisions of the statute.
It may strike you as being unusual, but I can assure the honourable senator that the Canada Elections Act is the most contested statute for constitutional reasons than any other statute in Canada that I am aware of. That is my way of answering that the Supreme Court did not in any way, in my view, affect the Consolidated Revenue Fund. All it did was strike down those provisions. I am not intending to destroy anything implied in your questions; I am just answering them as I heard them.
With respect to the number of parties, I did not flag a concern that I have about an undue proliferation of parties. I do not know what the impact will be. There are other regimes that had something relatively easy in terms of party formation. Obviously, they usually have more parties than what exist now. You have seen the numbers, nine plus two and some waiting in the wings. Other jurisdictions have 35; some have several hundred. The concern that I flagged was one relating to the role being given to the Chief Electoral Officer. There may be a role or an impact on a number of parties, but one can ask, "Is this undue?'' That is something I leave to the judgment of the House of Commons and of the Senate when it is considering this statute.
In terms of the purpose of the office, I think you struck the right chord, senator, but I want to remind you that this is an office that has existed since 1920.
Senator Cools: That is recent in parliamentary history.
Mr. Kingsley: It is the oldest independent commission in the world. We were the first country to do this. In India, it was 50 years ago. I celebrated their fiftieth anniversary with them one or two years ago. We were there 84 years ago. That is the best I can answer respecting the time frame that I think you are looking for.
Senator Pearson: I have a practical question that may be contained within the legislation, but it struck me when I was listening to you.
I understand the concern about judgment that you are being called on, but the only thing you are being called on to judge is not all the purposes, just one purpose, which was the principal purpose to put someone forward as a candidate. Envisaging the future, if the party in question does not field a candidate, does that then enable you to deregister the party?
Mr. Kingsley: The answer to that is yes. In terms of the purpose, I have to look at whether or not they will participate in public affairs. That is another one in terms of the purpose: Field one candidate and support candidates — the one candidate or the number of candidates they have — and participate in public affairs.
Senator Pearson: That is fine because I do not find those onerous as criteria.
Mr. Kingsley: I may be coming back to the committee to ask for advice on that one.
Senator Smith: This is a hobbyhorse of mine; I am curious to get a reaction from you. When it comes to criteria on membership, I have always thought that if you have to pay an annual fee that gives it some meaning that it otherwise does not. In the Liberal Party, we are a federation of provincial sections of a federal party. Each has its own constitution, and they are different. We have two provinces, I believe Newfoundland and New Brunswick, where you do not have to pay an annual membership — in fact, you do not even have to pay a membership. Once you sign up, you belong for life. It has even been suggested that some belong even after they have expired. For some reason, every few years, when a leadership convention is approaching, this seems to have some relevance.
I always thought it would be neat to have national standards, and you said, well, it has to be at least a $5 fee, so it is not necessarily onerous, but to give it some meaning.
In your review of legislation regarding criteria from parties in other countries, have you ever encountered a situation where you have to membership and you would have to be a paid member, or would this be new ground?
Mr. Kingsley: As you were asking the question, the answer was whispered to me. New Zealand requires payment of a fee. There is some precedent for that.
Senator Smith: As far as you know, does that seem to work? Have you not heard about problems?
Mr. Kingsley: I will answer that I agree with the premise you have just stated. I think there should be a fee and I think it should be paid by the person who is applying for the membership.
Senator Smith: I am shocked that you might think that some people's fees are paid for them by other people. I am never too old to learn new things.
Senator Andreychuk: New tricks?
Senator Joyal: In the context of the Figueroa decision and the approach to the definition of "political party,'' that is certainly made easier with this bill in terms of the number of supporters, which is 250, and in terms of the number of candidates, which is one. There is an element of reflection — and I will put this in very mild terms — in conjunction with Bill C-24. I will refer you to section 45.01 of the act, which provides for quarterly allowance to registered parties and establishes a threshold. On the one hand, the act establishes a very loose and open system to be considered legally a political party. At the same time, it establishes a threshold that goes in terms of popular support. I come back to your criteria, namely, some tests of public support that could be questioned as being too high to respect the principle of Figueroa, which is, referring to paragraph 54, legislation that "exacerbates a pre-existing disparity in the characteristics of political parties to communicate their position into the general public is consistent with section 3 of the Charter.''
There has been a problem since the Figueroa decision of June 27, which was after we adopted Bill C-24 last spring. That is an element that you should probably look into in the determination of your approach to the definition of political parties. Once you have determined that a political party exists, that political party has a potential claim on the treasury, and that potential claim is based on the threshold of public support. The public support is measured in the bill on the basis of what there is already for the reimbursement of electoral expenses. That was the reasoning the minister gave us when we discussed that issue at the committee last spring. I feel that equating the two might not meet the same test.
I leave that with you, because I do not have the answer and cannot propose a definite answer. I raised that question with the minister after the decision. We should be very cautious on where we move on this because the whole of the act must remain coherent on the basic principles of how we define political parties and everything that ensues from that. You will be the one to apply it. I do not know if you reflected on that part of the bill, but it is still open in my mind on the basis of the principle of the act.
Mr. Kingsley: Mr. Chairman, the point raised is definitely worth considering. I have been waiting for an opportunity to put this on the record. It is a quote from Umberto Eco: If I had the answer to that question, sir, I would be teaching philosophy at the University of Paris.
The Chairman: Thank you very much. It has been very informative and interesting.
Honourable senators, did everyone receive a copy of the report from Mr. Audcent? Are we prepared to go to clause- by-clause consideration on Bill C-20, or are there questions?
Senator Andreychuk: We are prepared to go to clause-by-clause consideration.
The Chairman: Essentially, he said was there was no need for Royal Recommendation.
Senator Joyal: Could we have his opinion printed as the appendix of our transcript from this morning so that it is part of our deliberations? The only thing that will appear in our minutes is that we have received a letter.
The Chairman: That will be tabled.
Senator Joyal: Someone could then refer to it later.
The Chairman: We will make sure that is done. That is a good point, Senator Joyal.
The Chairman: Honourable senators, is it agreed that we now proceed to clause-by-clause consideration of Bill C- 20?
Senator Joyal: I do not want to appear to be belabouring the procedure this morning, but you will remember at the last meeting I raised the sixteenth report from the Standing Committee on Procedure and House Affairs Committee, third session, thirty-seventh Parliament. I should like to draw attention to the recommendation of the House of Commons that addressed the very specific point that we are discussing in this bill. I will read Recommendation No. 9 of the report, which is exactly on the point that we have been discussing:
The committee recommends that:
Section 23 of the Electoral Boundaries Readjustment Act be changed so that in the case of an objection to a proposed electoral district name, and where there is a unanimous recommendation of the relevant committee of the House that considers the objection, that the electoral boundaries commission shall follow the recommendation of the committee. This would simplify the business of the House of Commons and the Senate, which has already expressed dissatisfaction with private Members' bills to change riding names.
I think I provided you with that recommendation, Mr. Chairman. I do not know if the clerk circulated that report to the members of the committee.
The Chairman: Yes.
Senator Joyal: It is essential, if we are to vote on this bill, to note that the other place recommended that there be an amendment and, if it had been adopted, we would not have the bill today in front of us.
The Chairman: Is it your suggestion, Senator Joyal, that we report the bill back with Recommendation No. 9 as an observation?
Senator Joyal: That is exactly my point. As you remember, we cited our report of four years ago when we started discussing this bill, and we posed that report to the minister, because the minister was not aware of that report. We recommended that the Electoral Boundaries Act be changed so we were not requested to pass these kinds of bills. I think there was a common understanding around the table on that. It seems to me there is concurrence of the House of Commons that that should be done. It is important, if we adopt this bill, that it be the last time we adopt such a bill, because it was recommended that there be amendment to the act.
The Chairman: Is it the wish of the committee that we append, with the appropriate language introducing it, Recommendation No. 9 of the sixteenth report of the Standing Committee of Procedure and House Affairs as an observation to Bill C-20?
Senator Joyal: Maybe that should come after we have voted the bill?
The Chairman: I need to know if all honourable senators are in agreement or if it is a point you wish to debate.
Senator Cools: I just want it clarified. Is the observation that we recommend that the legislation be amended forthwith, or is our observation basically that a recommendation was already put in the House of Commons and we are just bringing it forward again? In other words, to whom is our recommendation?
Senator Joyal: It is good point. Our committee report has already drawn to the attention of the Senate the fact that there should be some amendments to the act to prevent this kind of bill, and the Standing Senate Committee on Legal and Constitutional Affairs wants to draw the attention again of the Senate to the report from a committee of the other place which recommended amendments along those lines. As you know, after the election, there will be a review of the act, and I think that would be appropriate time for them to do it.
Senator Cools: We are drawing the attention of the Senate to it.
The Chairman: I would suggest, senators, that we proceed to adoption of the bill, that the appropriate observation be prepared, and that the bill not be reported back until next week when the committee has had a chance to review the recommendation and the wording of the observation. Is that agreed?
Hon. Senators: Agreed.
The Chairman: Is it agreed that we now proceed to clause-by-clause consideration of Bill C-20?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clauses 1 to 10 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 21 to 30 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 31 to 39 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: In case I have not said it, shall clauses 11 to 20 carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted with observations?
Hon. Senators: Agreed.
The Chairman: Is it agreed that the bill not be reported back until the committee has had a chance to review the observations to be appended?
Hon. Senators: Agreed.
The Chairman: Thank you, senators.
The committee adjourned.