Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence for May 6, 2004
OTTAWA, Thursday, May 6, 2004
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:55 a.m. to examine Bill C-3, to amend the Canada Elections Act and the Income Tax Act.
Senator George J. Furey (Chairman) in the Chair.
[Translation]
The Chairman: Honourable senators, we have a quorum. This morning we will resume our consideration of Bill C-3, to amend the Canada Elections Act and the Income Tax Act.
[English]
Afterward, we will go in camera to discuss the draft report for Bill C-20.
We welcome back the Honourable Mr. Saada and his officials. We asked them back as a result of some questions that were raised towards the end of our hearings yesterday.
My suggestion, minister, would be that, unless you wish to make a statement, we go directly to the questions that were raised yesterday. Unfortunately, the minister must leave in 20 minutes or so. I would prefer, if it is all right, Senator Andreychuk, that we go directly to the questions that were raised and see if we can have a response from the minister and his officials.
Senator Andreychuk: Thank you, minister, for coming back to deal with this important bill. Yesterday, we had a number of witnesses who academically looked at the bill less practically. They were able to assist us in what they thought to be the application and both the intended and the unintended consequences.
There was a feeling that the court has really changed how political parties will function and their role in Canadian society. While political parties were a method of organization of citizens to bring together an efficient way of governance, the court has now taken a different approach — and I am synthesizing the conversation; no doubt you have read some of the testimony. Political parties will now play a role in bringing the diversity of opinion to Parliament. Therefore, the aspect of how parties function and how parties will be accepted in Canadian society will be dramatically affected. Our entire political system will be more affected than one believes by reading this bill. Minor parties will now have a greater role.
They did put their emphasis on the fact that we previously talked about peripheral or smaller parties and larger parties or legitimate parties and fringe parties. However, those kinds of definitions no longer hold. In fact, it is the diversity of opinion that is necessary. Would you comment on that?
It led to a discussion about the future effect of the Communist Party, which had taken the application to the Supreme Court, and the other parties. The six parties now registered that are not represented in Parliament will be using the judgment of the court that led to Bill C-3 in their analysis of Bill C-24. They will now make an application to the court to challenge Bill C-24 on the reasoning that led to Bill C-3 and the court's judgment. Could you comment on whether that has been taken into account?
This appears to be a fundamental shift in our parliamentary system. There was discussion by some members around this table — not all, but some — that there would be some preference in having you, minister, apply to the court to extend the June 27 date, which is certainly an option. Justice departments in the past have utilized it.
If the court gives you a year and you have substantive reason not to be able to comply within the year, it would be reasonable to ask the court to extend the time limit. Therefore, the urgency of passing immediately Bill C-3 would be changed to further, more deliberate study on the true effect of Bill C-3.
Also, these parties indicated that they did not have consultation with the government before Bill C-3 was passed. Two of the parties represented certainly adamantly said they were against this bill. They indicated that it would have been more appropriate for them and others in Canada to have a more public airing and consultation process. The delay from the court would afford that.
I have thrown about three or four questions in there. I would appreciate the answers to those.
The Honourable Jacques Saada, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform: Thank you. I am trying to make notes at the same time.
The first point you made was that there will be more parties to better reflect the diversity of opinions in the Canadian population. I believe that you are right. I believe that gives more democracy not less democracy. Therefore, to me it would be an asset, not necessarily a liability.
Of course, we must keep in mind that the sustainability of any political party depends on its performance. The issue of public funding and other things depends on the performance of a party at the general election.
All of those things are linked together. What we call fringe or marginal parties will still have a few hurdles to overcome to become sustainable in the longer term.
Please correct me, senator, if I am wrong, but I understand that no such legal action has been taken yet. There was a manifestation of intent.
Senator Andreychuk: No. They came formally to say that there is a consensus among the six parties to begin the action as soon as this proposed legislation is passed. They will use this legislation as justification. They have served notice, in other words.
Mr. Saada: The problem I see with that is two-fold. While I fully respect the formality of a statement made before this committee, first, the official decision is made only once the court is actually seized with the issue.
There is something much more important than that. If, indeed, Mr. Figueroa or a group of people he has referred to go before the courts, the process will take years. I do not know how long the Figueroa case took before the decision of June 27, 2003, but it was literally years and years. Will we have a loophole in our law that we know is unconstitutional for as long as a potential legal process will take place? I do not believe we should govern and legislate on the basis of potential challenges or outcomes that have not been initiated yet. That is very difficult to defend.
The extension of the stay is a valid question and is something that we have looked at closely. As you know, the Supreme Court has already stated, at least in theory, that a stay is of an exceptional nature. Practically speaking, there have been number of cases where a stay has been granted. The extension of a stay is even more exceptional.
We had one year to deal with the problem. First, there is no basis for us to ask for a stay at this point. Let us assume that we ask for a stay and get a stay of six months, just for the sake of argument here. We have a sunset clause in the bill, which is two years. No one argued against that because everyone found it was reasonable. We have this two-year sunset clause simply to ensure that we have enough time to go to the root of the issues and actually come back with legislation that will be much more encompassing and much better thought out.
You will never get a stay of two years with the Supreme Court on this issue. It is simply not possible. For that reason, everything coming together confirmed our initiative of ensuring that we have something so as not to have a loophole in the law in the short term while looking at all the implications and coming up with something much more substantive in the longer term.
In terms of consultation with government on the bill, as you know, Mr. Figueroa himself appeared before the Standing Committee on Procedure and House Affairs. The committee was, of course, free to consult with whomever they felt had some input that they wanted to hear. My recollection of Mr. Figueroa's testimony before the standing committee of the House was not that he was opposed to the bill. He had some problems with some elements of the bill, but he was not opposed to the principle of the bill. You understand that after last night I have not had a chance to read in detail his testimony, so it is very difficult for me to argue or counter-argue, but I am trying to recollect what happened when we appeared before the standing committee.
Mr. Stephen Zaluski, Privy Council Officer, Senior Counsel, Legislation and House Planning, Counsel, Privy Council Office: With respect to the consultation with the smaller parties, traditionally, the vehicle has been Elections Canada, through the committee that Elections Canada has of bringing together the leadership or representatives of different parties. That has been the vehicle that has been used. It is my recollection that before the House committee, Mr. Figueroa indicated that consultations had taken place — perhaps it was not Mr. Figueroa. However, there was evidence that consultation with parties had taken place through the Elections Canada process.
Senator Mercer: From my former life, I can tell you that it did happen. I was in attendance, in a former position.
Senator Andreychuk: Were they public consultations?
Mr. Zaluski: In terms of the Elections Canada process, it is my understanding that that is simply done by Elections Canada, not as a public process, but with representatives of the parties.
Mr. Saada: Has that answered your questions?
Senator Andreychuk: Yes. It was pointed out that the impact of this bill would be felt by broadcasters having to oblige the free time process. Many consequences of the bill have not been explored other than the ones I have already raised as concerns.
Mr. Saada: That is something that I believe the standing committee of the House, with the input they invited from this committee when I appeared last time, will have to address. It is a very important issue. Bill C-3 does not deal with this issue. When I referred to the broader implications of the Supreme Court decision, this is one important element in terms of requiring time to look into in great depth.
The Chairman: We have limited time with the minister. However, his officials can stay on. I apologize to Senator Lynch-Staunton. The normal practice for our committee is to go to members of leadership when they are present at committee hearings. Instead of the normal routine of crossing side-by-side for questioners, I will go to Senator Lynch- Staunton for the second question.
Senator Lynch-Staunton: Thank you, chair. It was quite appropriate for you to go Senator Andreychuk first, since the main purpose of the minister's appearance was to follow up on questions that she raised.
I will take advantage of your appearance, minister, to ask you a question that I asked Mr. Kingsley. He directed me to the authors of the bill itself. I see, and I hope you can contradict me on this, a contradiction in clause 27 of the bill, which says, in 27(1), in part, that ``this Act comes into force on June 27, 2004...'' The explanatory note states this is to meet the deadline set by the Supreme Court.
Clause 27(2) of that clause confuses me. That subclause reads as follows:
If this Act receives royal assent on a day that is after June 27, 2004, it comes into effect on that day.
That is very clear, but it seems contradictory. The court said what would happen after June 27 if Parliament did not act. However, this seems to say that we will not meet the deadline if we impose 27(2) because Royal Assent may take place six months or a year or two days after. Is there a contradiction here? If not, why is 27(2) in there?
Mr. Saada: Let us imagine, for instance, that Parliament cannot come to a final conclusion on this bill before June 27 but rather sits on June 28 and finishes it on June 28. This is simply to express the fact that, as soon thereafter as possible, the bill would come into effect. It is a matter of prudence, not contradiction. Clearly, the objective of the bill is to be passed before June 27, obviously, but this is just in case we have some last minute difficulties to overcome and the bill is not passed. We still have a measure of prudence to foresee the implementation as quickly as possible.
Senator Lynch-Staunton: What would happen if the bill were not passed before dissolution?
Mr. Saada: Thank you, senator, for referring back to a comment I had made in this regard. The matter is very clear. Since we have this decision from the Supreme Court, if we do not have a bill, which is a bridge bill, as I defined it when I appeared last time, we have a tremendous loophole in the law, and we have no regulations or no instrument to either register or, more important, to deregister any political party. It might be a tremendous cost to the taxpayers. The first and foremost obligation we have in this regard is to ensure that we do not allow that to happen while we are going through the thinking process of how to design something final on this issue. That is the purpose of having this bill quickly.
Senator Lynch-Staunton: Surely, if there were dissolution before the Senate or Parliament acted, you have an ability to go before the court and ask for an extension. It would not be as tragic as you suggest.
Mr. Saada: You would be perfectly right if you took for granted that the court would give us this.
Senator Lynch-Staunton: There are precedents for it. The court would understand. It is easy to blame the Senate. The courts would be sympathetic to problem of the government.
Mr. Saada: Would you allow me, senator, not to blame the Senate because they will ensure that we do not have to rely on a hypothetical answer of the court and do our thing here?
[Translation]
Senator Joyal: If you go before a court to ask for a deferral of the application of a judgment, you allege that you would not have any reasonable motive to submit. According to the judgment, the government should have acted, but government does not control Parliament. It may happen, and quite reasonably so, that the government introduces a bill in Parliament and the latter disposes of it according to the procedure chosen. The government, to use a legal expression, has an obligation as to the means, but has no obligation as to the results. It must take the means necessary to prepare a bill, introduce it and ensure that it is put on the order paper of the government in the House or in the Senate. But the government cannot guarantee the result. Parliament, in its sovereignty, is the one who disposes of it. It can dispose of it with amendments; for example, the Senate could make amendments, send it back to the House and so on. The court understands that reality very well.
It seems to me that when the government asks the court, whatever the case may be, to defer the application of a judgment and shows it has taken the reasonable means available to it, then the court should understand that the government is acting in good faith. It seems to me that good faith is an important element in the evidence to bring before the courts to prove that you have taken the means but have not managed to guarantee the totality of the result. The court would look at the bill and say that there is actually a bill, that there were witnesses, that certain things remain to be done and that some things need to be defined more clearly. The nature of the bill is itself temporary.
There is a two-year sunset clause in the bill. This signals to the court that a legal vacuum could occur after two years. The day the bill expires, there will not necessarily be another one immediately coming into force on the expiry date of the previous bill. You cannot foresee the circumstances of what will happen.
Because of its intrinsic nature, the bill is not a guarantee that the provisions of the judgment have been met.
If the government were to decide to ask for a deferral of the application of the judgment, I wonder if the court would not consider those arguments seriously.
Mr. Saada: Practically and not technically speaking, we have a choice between two options: to make a decision as parliamentarians, which is the option I am suggesting or to defer to a hypothetical decision of the Supreme Court as to another extension.
I have of course tried to explain as clearly as possible why I thought it was important for us, as parliamentarians, to make that decision rather than to go with the hypothetical decision of the Supreme Court.
What also concerns me is the extent of the consequences of the Supreme Court's judgment. I believe that any extension of respite we might obtain would come with a time limit. I do not think that the Supreme Court, having declared something to be anti-constitutional, would accept this anti-constitutionality for a year. It would not be tempted to extend it any longer. Even if it were, it might only grant six months; I do not think that would be enough if we consider the normal parliamentary constraints. And I am not even going to mention electoral considerations. We are in May. Were we to obtain this hypothetical extension, we would still suspend for the summer and come back in September. This whole process, coming back to the House — because if we are talking about amending Bill C-3, then it will have to be re-examined by the House — I do not see how Bill C-3 could be amended to answer all the far broader concerns set out in the judgment of the Supreme Court. We could not get through the necessary legislative process in six months. It is impossible.
I am a bit worried that we have, on the one hand, the choice of a temporary measure, which we know is temporary, with an obligation for Parliament to deal with its temporary nature, and that depends exclusively on Parliament, and on the other hand, there is the option of seeking an extension from the Supreme Court, and that would no longer depend on Parliament, but on the Supreme Court, and would be purely hypothetical, both in terms of time and in terms of getting the extension.
[English]
The Chairman: The minister must leave. Senator Rivest had a question. Is it one that could be handled by the officials, or do you need to ask it directly to the minister?
[Translation]
Senator Rivest: One of the reasons for the solidity of our system of managing election practices is the status of the Chief Electoral Officer. Yesterday, Professor Massicotte pointed out that one of the reasons why this person is still in authority, and has exercised practical and moral authority, is because he has not had to make any subjective judgments. It would be difficult to try to put the Chief Electoral Officer in a position in which he would have to pass judgment on factual issues. It will just have to be kept in mind, when the act is reviewed, that the registration or party status recognition criteria, especially for deregistration, should not include subjective criteria, and as much as possible, should stick to numerical criteria or readily verifiable factual criteria.
Mr. Saada: You are raising a very important point that deserves serious consideration. We might have to look at what some provinces do. British Columbia, Saskatchewan, Manitoba, Nova Scotia, Newfoundland and Labrador all have provisions concerning political party status. We could start from there.
That said, it is really open to debate what factors could be considered. I would not want to prejudge the conclusion to be drawn by parliamentarians in the course of the long-term process that I am proposing. For example, how the party's articles of incorporation and letters patent are drafted, the nature of the activities, the funding, interactions with other entities that are not political parties, and whether the party is a not-profit entity. Your question is quite relevant and deserves to be debated at length, and this cannot be done in just a few days or hours.
[English]
The Chairman: Thank you very much minister. I realize that you have to leave. I want to thank you for attending here on short notice.
Mr. Saada: It is always a pleasure; I am getting used to it now.
The Chairman: Senators, is it necessary for the officials to stay? Are there any other questions to be directed to the officials, or can they leave with the minister?
Senator Andreychuk: They can leave with the minister.
The Chairman: Thank you very much for being here.
Senator Lynch-Staunton: I am still confused about the Royal Assent provision. If the officials have anything to add to that of a technical nature, I should like them to stay. If I am the only one, I can talk to them privately.
Mr. Stéphane Perrault, Senior Privy Council Officer, Privy Council Office: As the minister explained, it is simply a technical measure of prudence if there is a last-minute effort required. On June 28, we can actually have the bill given Royal Assent and take effect, if Parliament is not able to pass this bill precisely for June 27. It was purely for prudence, as the minister explained.
Senator Lynch-Staunton: Is the deadline not a deadline?
Mr. Perrault: The measure of prudence does not in any way effect the ruling or the urgency, but it allows that if, indeed, unfortunately, the bill is passed after that date, the duration of the problem is restricted.
Mr. Zaluski: Perhaps I could take a step back. The clause that you are referring to, as you mentioned, is subclause (2). Subclause (1) is there to change the normal rule. In normal cases, they come into force in six months, unless the CEO certifies earlier. In this case, because of the June 27 deadline, subclause (1) needed to be included to make it clear that the outside date was June 27. Subclause (2) was added in the event that the bill was not passed prior to June 27. The bill then needed to address what happens under those circumstances. The subclause simply restates the normal rule, which is that it takes effect upon Royal Assent.
Mr. Perrault: The normal rule, not for this bill but for other legislation.
Mr. Zaluski: Correct. Obviously, legislation cannot take effect prior to Royal Assent. It says, in that case, as soon after June 27 as possible. In other words, as soon as it is passed.
Senator Lynch-Staunton: What happens between June 27 when there is no Royal Assent and the day there is Royal Assent? Do the parts of the Canada Elections Act that the court declared unconstitutional disappear?
Mr. Zaluski: You are left in the situation that the Chief Electoral Officer described. The system will be frozen.
Mr. Perrault: Or until someone challenges it. The CEO has indicated that he, in his interpretation, would not be able to register any party. Another party may feel that it could be registered with no candidate, not one but zero, and it could take legal action. There could be confusion and controversy. Subclause (2) limits that risk to the minimum.
Mr. Zaluski: Senator, I think in the chamber you raised the issue of retroactivity as a possibility.
Senator Lynch-Staunton: Yes.
Mr. Zaluski: In response to that, the problem is that even having it retroactive would not solve the fact that, if the law were passed, there would be a gap.
Senator Lynch-Staunton: I see that now. Thank you for your patience and that of my colleagues. Can this come into force for the election that everyone sees will happen before the end of June? It will become law, but can it be implemented?
Mr. Perrault: I do not want to speak for the CEO. He has spoken to that effect, so I will not add to that. However, I would say that this bill does not affect a rule that pre-exists in the Elections Act, which is that a party can be registered only if it has made its application to be eligible 60 days prior to the drop of the writ. This bill does not affect that previous rule, so it would come into effect under your scenario but would not necessarily allow new parties to register under the new rules.
There is also a six-month delay for the existing parties to be given time to comply, to give the names of 250 members, to have the leader make a signed statement — those new procedural requirements.
Senator Lynch-Staunton: Can parties that applied under the 50 rule but have not fielded candidates prior to 60 days before the writ, once this bill is passed, just field one candidate and become eligible?
Mr. Perrault: I think you are correct. If they have already made their application and have already become eligible 60 days before the drop of the writ, yes, they could be registered.
Mr. Zaluski: It was my understanding that that was the effect of Mr. Kingsley's testimony.
Senator Lynch-Staunton: Yes, I just wanted to make sure. Thank you, again.
Senator Andreychuk: I thought I understood both subclauses, until those two questions.
Senator Lynch-Staunton: I am reassured.
Senator Andreychuk: Now I am not.
Are you saying that subclause 27(2) basically says that, assuming there were no election and we just carried on, the day we pass this bill and Royal Assent is given it will then come into force on that day if it is after June 27?
Mr. Zaluski: Yes.
Senator Andreychuk: Conceivably, however, the window of opportunity would be from that day two years hence, because this proposed legislation will expire in two years. If we pass the act on June 28?
Mr. Perrault: It would come into force on June 28.
Senator Andreychuk: If it came into force two years hence, it would be then. Is that what we are saying?
Mr. Perrault: Yes.
Senator Andreychuk: It is not reverting back to the normal rules. It is changing the normal rule and changing subclause (1).
Mr. Perrault: It is not reverting back to the normal rules, you are correct, with respect to electoral legislation. It is reverting back to the normal rules for other legislation, which is coming into force on the day of Royal Assent. Otherwise, it would have required an additional six months under the normal electoral rules.
Senator Andreychuk: If this were passed, in answer to the second question, the Chief Electoral Officer is obliged to review all of the parties — the parties that are registered now, the parties that have applied and not been registered, and some from whom they received applications and are being scrutinized. There are three categories. Would not the Chief Electoral Officer have to immediately determine whether all parties comply with the new legislation? There is an obligation on the Chief Electoral Officer to determine whether they are political parties, according to the definition, whether, in fact, they are fielding candidates and whether they comply with all of the other terms in the proposed act, shall I say.
In other words, would we not need some analysis? If you do not comply under this new basis, you should then start becoming part of a deregistration.
Mr. Perrault: Clause 26 in the bill provides for a six-month transition for existing, registered and eligible parties.
Mr. Zaluski: They have six months to bring themselves into compliance with the new requirements following coming into force.
Mr. Perrault: They are not just siphoned out of the system in the coming into force.
Senator Andreychuk: It would be a curious thing to have an election and allow the six-month compliance, and then lead to a deregistration. You would have parties that technically participated in an election and that are technically in compliance, but practically, we would be saying, under the new law, if we started to deregister, that somehow they were not legitimate.
Mr. Zaluski: It depends what requirements those parties would be unable to fulfil when the new rules came into force.
Senator Andreychuk: I have no idea. That is the problem. That would depend on what the Chief Electoral Officer determines and how he exercises his duty in determining compliance under the new definition of ``political party'' with the registration, et cetera.
Mr. Zaluski: However, those parties, having been parties, having fielded a candidate in the election, presumably having at least 250 members, having three officers, and so on — presumably it would be quite straightforward for those parties to fulfil those requirements after the six months.
Senator Andreychuk: That is an assumption. It may be a reasonable assumption, but it is an assumption.
Mr. Perrault: Yes. The issue is whether or not it is a reasonable assumption.
Senator Andreychuk: It is a curious way to approach law — the Florida syndrome.
Senator Joyal: Again, on subclause 27(2), what is the distinction that you make between the assent and the proclamation? Why is the bill drafted to read, ``If this Act receives royal assent on a day that is after June 27, 2004, it comes into force on that day?'' Why is not the date of proclamation mentioned?
Mr. Perrault: Technically, bills come into force on the day of Royal Assent. I misused the word proclamation. In certain legislation, you can see the possibility for proclaiming coming into force at another date than Royal Assent. However, the normal rule, otherwise, is coming into force on the day of Royal Assent.
Senator Joyal: You presume that, on June 27, the Chief Electoral Officer will have made all the necessary preparations for the bringing into operation of this act.
Mr. Perrault: We make that presumption because we consulted with the Chief Electoral Officer before setting that clause.
Senator Joyal: In other words, if assent comes after June 27, there would be a void as far as some of the sections of the Electoral Act are concerned. That void would last as long as the bill has not received Royal Assent.
Mr. Perrault: Yes. Under that scenario, the government may well seek a stay, as we have been discussing. That can take a while. We may or may not get it. The bill may pass and then get Royal Assent, or it may be parallel tracked. We are, for prudence, are providing for all of the options.
Senator Joyal: I think that should be the course of action.
If the bill is not passed by the June 27, in my opinion, at that time, the government should go to the court and explain to the court why there should be a stay to avoid a legal void.
Mr. Perrault: Assuming the government decides to do that, it is still prudent to have this clause. If the parliamentary process continues under that scenario, and we do have agreement by both Houses, then we could have it coming into force, which would be preferable than a stay. We could play on the two fields.
Mr. Zaluski: The case you made earlier for the case that we would make to Supreme Court is probably as eloquent as it could be put. That is the argument we would have to make.
However, as the minister has stated, the court has acknowledged that suspending declaration of invalidity is an extraordinary measure because the court is allowing an unconstitutional regime to remain in place. It has indicated that that should be for the minimum time possible. To ask the court to prolong a state of declared unconstitutionality is taking on a very high hurdle.
The advice we received is that you would need some very good evidence to convince the court today. We could ask, but there is no guarantee.
Mr. Perrault: Until we have come to the point where there is no time left, either through dissolution of Parliament or June 27, the court will look at the situation and find that Parliament is sitting and determine that a request is premature. There would still be time to pass legislation.
The Chairman: My understanding, if I may, is that there are three possible scenarios: First, if the legislation receives Royal Assent on a day after June 27, it comes into force on that day. If it is an earlier date, it comes into force on June 27, unless under proposed section 27(1), the CEO intervenes and does the necessary —
Mr. Perrault: Issues a notice.
The Chairman: — gazetting to bring it into force on a different date. I believe that was the point of Senator Joyal.
Senator Joyal: I had in mind what happened in the Manitoba case.
[Translation]
My colleague, Senator Rivest, will recall this decision, which invalidated all of the laws of the Manitoba legislature. The Government of Manitoba was unable to translate the laws by the deadline set by the court, and it had to go back to court to get a postponement of the application of the judgment in order to avoid a legal vacuum or the absence of laws that had not been translated and were no longer in force in Manitoba.
What concerns me — it may be an academic question but it is important constitutionally — is that when the Supreme Court declares a law to be unconstitutional, in my opinion, the Government of Canada cannot leave a legal vacuum, it is obliged to go back to court to validate the system that was found to be invalid for the time it takes to put in place whatever is necessary to make the system valid. If there were an application for postponement of the application of the judgment, in my view, it would begin on the 27th.
Mr. Perrault: The application could be made on that date. I cannot speak for the Attorney General, who is responsible for making that decision. However, assuming the Attorney General were to apply for an extension of the stay, Parliament could, in theory, and that is why it is drafted that way, pass the legislation before the court ruled on the extension. It would take a few weeks, the parties would be notified and the coming into force of the legislation would make the extension of the stay pointless, but this would not change the fact that all of these questions would be put back on the table with the sunset clause in the bill.
[English]
Senator Andreychuk: The court has already said that it is unconstitutional in particular sections. They gave a year, which they thought was a reasonable time, to accomplish constitutionality or compliance, if I can call it that.
That one year is a their assumption. As Senator Joyal pointed out, sometimes the court's assumption of the time needed does not take into account all of the factors. Therefore, you do not say that there is a constitutional void. We have a constitutional problem now, and we have had it for a year. The court recognizes it.
Whether the unconstitutionality is one year, a year and a half or two years, the unconstitutionality factor does not change. Only the time to comply changes.
I think it is reasonable to go to court and say that, because of the unusual year — for example, the transition of Prime Ministers — and for other compelling reasons a delay is requested. This bill came very recently to us. An extension for compliance would be reasonable.
I would not presume that a court would not grant it if serious consideration is being given to the bill. It is a question of compliance given within proper governance modalities.
Mr. Perrault: It is not my role here as an official to be argumentative. That is not my intention.
I would recall two considerations. First, there is no certainty, and in our view based on advice that we received — it is unlikely that we would obtain it at this time. That does not mean in future we would not on contain it.
The other consideration is one expressed by the minister. The court has in the past granted extensions — and they have always been very limited. We would not expect to get more than six months. To undertake the broader review of the implications regarding such legislation would take a longer time than that.
There was testimony yesterday on broadcasting and the 2 and 5 per cent rule. There was testimony that the internal affairs of a party and the nomination process should be more heavily regulated. To look into this, as the minister stated, is not something that could be achieved in a very short period in the fall, before December.
Therefore, in the fall, we would be placed in a position of having to come back to Parliament as officials with a similar, if not perfectly identical bill, seeking a stopgap measure, saying that we are opening to looking at other issues but that for the period we have left we need the stopgap measure.
These are the considerations that led us to conclude that, as the minister said, perhaps the better option would be to proceed right away and then review after.
The Chairman: Were you finished, Senator Joyal?
Senator Joyal: I do not want to extend that discussion very long. However, for me, there is a problem for the Governor General to be put into a position of coming to a point when we are in a constitutional void, which is essentially a legality. That is another issue, and I do not want to raise it at this point. It is certainly the reality of 27(2).
The Chairman: Thank you, Mr. Perreault and Mr. Zaluski for attending here once again.
Senator Mercer: Mr. Chairman, I move that we now move to clause-by-clause consideration.
The Chairman: We have a motion to move to clause-by-clause consideration. Is there any dissension?
Senator Lynch-Staunton: I do not see anything on this morning's notice of going to clause-by-clause. The convention is that, after hearing witnesses, particularly a minister, there is time for some appreciation of the testimony. Clause-by- clause consideration should not follow immediately after, otherwise, what is the point of having the minister?
The Chairman: Unfortunately, Senator Lynch-Staunton, you were not here last evening. When the issue of asking two or three specific questions to the minister was raised, the concept that we not go to clause-by-clause on the same time we hear witnesses was addressed. We had agreement around the table that, if the majority of the committee were satisfied with the responses from the minister and his officials, we would not adhere to that normal practice in this particular circumstance. That was agreed by all parties.
Senator Lynch-Staunton: Not everybody has access to the transcript of a committee hearing that ends at nine o'clock or ten o'clock in the evening.
I planned to bring an amendment to one of the clauses, which I do not have with me because when I looked at the agenda, I did not see clause-by-clause. I assumed that since the minister would be here, in deference to his testimony and that of the officials, we would do it at another occasion. I suppose I should have read the transcript at six o'clock this morning.
The Chairman: I apologize for that.
Senator Lynch-Staunton: It is not an apology that I want. I want respect for custom and convention — although I accept the apology.
Senator Andreychuk: I wish to intervene, please. Senator Lynch-Staunton said it correctly. There was a discussion about how to proceed if the minister came back. Senator Kinsella said that we are not here to unduly delay the bill. Our intent is to do the job. I am paraphrasing him. He had suggested that we could deal with it expeditiously next week.
Mr. Chair, you had said that if the majority of the group here wished to go ahead with clause-by-clause — we left it with that sort of comment. Now, you are going to clause-by-clause but we have not had a discussion around this table as to whether we are in agreement to go to clause-by-clause.
Are we satisfied with what the minister has said? Do we want some time to reflect on it? I would have hoped, at least, that there would be a canvass around the room as to how we are ingesting the information we just received.
The Chairman: That is fair enough. Senator Andreychuk, that certainly would be in line with the comments that were made last night regarding whether the majority of the committee was satisfied with the evidence of the minister and his officials. I accept your comments, and I will canvass the committee.
Senator Mercer: I would assume, Mr. Chairman, that a vote on the motion that I put would determine whether the majority were satisfied with the testimony, because they would want to move to clause-by-clause.
Senator Pearson: It is legitimate to ask for an opinion — and I think Senator Mercer is correct, too.
However, I should like to say that, having listened attentively, I am satisfied with the situation in which we find ourselves. I understand that everything is on assumptions, but, honestly, everything is on assumptions all the time anyway. It is borrowing trouble where we do not need to borrow trouble. Therefore, I was convinced by Minister Saada, whom I think took our questions seriously. I was grateful that he came on short notice. I am now satisfied that we should go ahead with clause-by-clause on this bill.
Certainly, my memory of what we discussed last night was that that was the general sense. I forget if it were Senator Kinsella or Senator Andreychuk —
The Chairman: Senator Nolin.
Senator Pearson: Senator Nolin asked for him to come back. The agreement was that we would do that and then, after that, ask whether we were ready to go to clause-by-clause.
Senator Smith: I am comfortable and ready to move on. I say comfortable, rather than enthused, because I am not that wild about that decision. The definition of what constitutes a party has been watered down a bit.
However, we do not have any choice given the decision of the Supreme Court of Canada. They responded in as appropriate a manner as they can to respond to the decision.
Senator Joyal and I were both in Parliament when the Charter was passed. Who was contemplating that, 20 years down the road, there would be decisions of this nature?
I can live with it. I understand the logic of it. I am comfortable to move on.
Senator Andreychuk: This bill was presented by the government saying that 50 nominated candidates was too high a threshold and they reduced it to one, based on the Charter. All of our reflections were on the reasonableness of this and perhaps what this meant on a practical basis. Is it implementable? Would this proliferate the number of parties?
I was struck, yesterday, that all of us did not enter into that debate that was so forcibly put out by all of the witnesses we had yesterday — that we are fundamentally shifting not just numbers — 50 down to 1 — and increasing the number of possible parties in the system. There is a fundamental philosophical shift, which was pointed out by Mr. Gibson and then very well, I thought, by Professor Smith. The effect of this will, in fact, be to totally change our attitudes toward political parties as Canadians, the operation of those parties and the effect on all areas including broadcasting.
Hence, this is a much more fundamental shift. We have said often in the Senate on the floor, that we have party systems, when we have a couple independents questioning the normal facilitating of the functioning and the governance of the Senate. We have always said that about political parties. That is how people express their views, and it leads to the efficiency of governance. It is a way of coming to some consensus, but the court is now talking about diversity. That will be a total shift in operations. I do not think the public is aware of that. As the minister has quite rightly said, it is something that has been discussed with the electoral officer, but these are matters of public policy and fundamental issues that should have had a greater debate and a greater airing with the public. The minister has put forward the other side of the argument, that there are some reasons to perhaps proceed.
I would have thought, at such a momentous point, that, first, the government would have brought this bill much quicker to us. We are coming towards the end of the year, and we are first being confronted with it. Second, I would have hoped that we would have at least reflected, over a weekend, as to whether all of these comments on the court's decision from the experts that we brought here will fundamentally change our system. Should we be weighing this on the practicality of proceeding quickly and not going back to the court for an extension?
I have some difficulty in just saying, ``Thank you, Mr. Minister. Thank you, experts. Let us go ahead and pass the bill.'' I think this bill has more in it than I was first led to believe. I do not think we would be serving the public well if we proceeded quickly.
The Chairman: Are there any further comments?
Senator Lynch-Staunton: If I may, for what it is worth, I am apprehensive now that more and more committees — and I do not attend them all — have a practice of neglecting essential conventions, particularly with clause-by-clause consideration. Too many times we hear, ``Let us not bother reading them; we will just rush through them,'' no objection, and off we go. At one time, we would go through the bills clause by clause and there would be hesitations on some matters and some discussion. That practice seems to have fallen by the wayside. At least, clause-by-clause consideration appeared on the agenda. It is not an insignificant part of a committee's work. I would maintain that, after witnesses, it is the most important part. Again, we are told that we have deadlines to meet and they will serve us well, so let us pop up a motion and go to clause-by-clause consideration. The majority agrees and away we go. That is not the way to operate, and I object to it.
The Chairman: I would again point out for the record that this issue of the general practice of this committee that we not go to clause by clause at the same sitting that we hear evidence was discussed last night, and at the last minute of the hearing Senator Nolin raised a couple of what we felt were important issues that he wanted the minister back for. We agreed to bring the minister back on condition that we would vary from the normal practice, and if people were satisfied with the responses of the minister — ``majority,'' I think was the word — then we would go to clause-by-clause consideration.
Is there any other discussion, senators? If not, we have a motion.
Senator Robichaud: Just on what you said, Mr. Chairman, was Senator Nolin comfortable with this proposition that we would call the minister and proceed?
The Chairman: The question I put to Senator Nolin was, ``Would you be in agreement with my proposal?'' He said, ``I will not be there tomorrow, so please proceed. Senator Joyal can do it.'' Whatever that means.
Senator Lynch-Staunton: May I point out in a last effort to convince senators of the impropriety of this procedure that the notice sent out and received at 3:24 yesterday for a meeting today, agenda item Bill C-3 — ``Witnesses to be determined'' — did not refer to clause-by-clause consideration. From what I see from these notices, clause-by-clause consideration was never officially considered for today.
The Chairman: It was not going to be considered until we heard the evidence yesterday, and after hearing the evidence yesterday, one of the senators wanted to hear back from the minister. It would have been on the agenda for today, but we discussed it last night and felt that was satisfactory.
Senator Lynch-Staunton: Again, that is not the way to proceed. It has to be on the notices. Clause-by-clause consideration is not just an afterthought.
The Chairman: You are quite right, Senator Lynch-Staunton, and because we do not treat it as an afterthought, and because we like to adhere to the normal practices that this committee normally adheres to, we discussed it in detail with the committee last night, and everybody was in agreement. There were no objections expressed around the table to the proposal that I put — that we would recognize the need to call back the minister and officials and that, after hearing the evidence, if a majority of the committee was satisfied with the responses we would go to clause-by-clause consideration. Nobody on this side or on your side objected at that time to that proposal.
Senator Andreychuk: In fairness to you, Mr. Chairman, and to myself, there was discussion wherein you indicated that you felt that we should go to clause-by-clause consideration on Thursday. I indicated that I thought that there were witnesses and that we should hear all of the witnesses. I also put on the record that I was concerned that we had put so many witnesses on the panels and that they would not have sufficient time to really deal with the issues. As usual, they were all crunched into one day, and perhaps we could have gotten more witnesses if we had made more effort for the Thursday. I think you were fair enough in saying that you wanted to go to clause by clause, so there is no argument on that.
Something that we have to be careful about is that the notice did go out after our discussion, and it did not say clause by clause at that time. It is not for you and I, but I think it is a question of privilege of each member. This is their notice — not what their whips tell them or the deputy chairman. That is how we, by convention, work. I know in the past an individual senator raised the issue that their functioning under the Senate Act comes from the rules, and by the rules it should state ``clause by clause.'' This is before Senator Nolin raised the issue.
I appreciate that you may not have put it on the second one, because there were two ways we could have gone, but I think we have to sharpen up our practices.
The Chairman: I agree with you, Senator Andreychuk, to this point. The normal process is that, after we hear evidence, the committee will decide to go clause by clause. We could not do that last night, because we agreed in an extraordinary set of circumstances to accede to the request of Senator Nolin, which we through was reasonable, but with the proviso that we would vary from the normal procedure of not going to clause-by-clause consideration at the same time that we hear evidence. There was agreement that if a majority of the committee was satisfied with the responses of the minister, and everybody was in agreement, then we would put the motion to go to clause-by-clause consideration. I do not think we put it in that phrase, ``put the motion,'' but that we would endeavour to go to clause- by-clause consideration, because if the majority of the committee says no, they are not satisfied, then we do not go to clause by clause.
Senator Andreychuk: My point is not about the last notice, the revised notice. My point is that previous to all those discussions, pre-Nolin at 3:24, which was before we started our meeting yesterday, I got a notice saying that on Thursday, May 6, we would hear witnesses to be determined. The notice did not say clause-by-clause consideration. This is where I am saying we should, in fairness to individual senators —
Senator Mercer: Would it not have been presumptuous of the chair to say that there would be clause by clause when there had been an agreement that we would go to clause by clause if there was agreement by the people here today?
Senator Andreychuk: You are missing the point. I am not talking about the last notice. We were alerted of the Wednesday meeting and the Thursday meeting, and the Thursday meeting did not say clause by clause. Then we got a revised one after our meeting and after our decision about the majority. In fairness, if there were a discussion to go clause by clause on the Wednesday and Thursday, we should not get notices that do not reflect that.
The Chairman: Senator Andreychuk, in fairness, we never issue a notice saying we will go to clause by clause until we have had either a steering committee meeting on it or we have the consent of the whole committee.
Last night, if we had finished with the evidence and Senator Nolin had not raised a good issue with respect to hearing the minister one more time to clear up a couple of issues, normally, we would have, either through the steering committee or through a majority vote of the committee, put the question of clause by clause. We do not normally do it until after the evidence is heard. Last night, I proposed as a solution to the problem of not putting the question of clause by clause last night to the committee and the request of Senator Nolin that we hear back from the minister and his officials and that if a majority of the committee were satisfied with the responses they received we would then proceed to clause-by-clause consideration. There was no disagreement with that proposal.
Senator Andreychuk: It is with that part that I am worried.
Senator Lynch-Staunton: The argument is not so much that. My argument is that an agenda is not the exclusive province of the committee members. An agenda of a public meeting belongs to all of the parliamentarians, to anyone interested in a particular issue, and they have not been advised that a key part of the deliberations on this bill, clause- by-clause consideration, will take place in the next few minutes. That is my objection.
The committee unanimously may have decided to go into clause by clause last night, but I still think that would be a wrong procedure. The public must be advised. Those who must come at the last minute with an amendment — it does not happen very often, but it could happen — no longer have the opportunity. As soon as you start clause-by-clause consideration, the game is over, and usually warning is given. In this case, no warning has been given. There is nothing on the Web site. We checked again this morning to see. It is exactly as we got today.
At the beginning of your remarks, Mr. Chairman, as I recall, you said we will hear the witnesses and then go into the consideration of the report. I did not hear ``clause-by-clause consideration.''
The Chairman: The problem, Senator Lynch-Staunton, is that we cannot give notice that we are going into clause- by-clause consideration if we come here, after agreeing to come back and hear other witnesses, and then decide that we are not going to clause-by-clause consideration. It is presumptuous to say that everyone will agree with the responses of the minister when the agreement was that we would hear from the minister and only go to clause-by-clause consideration of the bill if the majority of the committee were satisfied with the responses. Anything short of that is presumptuous.
Senator Lynch-Staunton: Even if the committee were unanimous to go into clause-by-clause consideration, it would not be the proper thing to do without other than the committee members being aware that that was the next step. That is what I am saying.
The Chairman: The committee members were aware that it was a possible next step today.
Senator Lynch-Staunton: Yes, but only committee members, and only they today know, unless someone is listening out there that this is happening.
Senator Robichaud: I would think that people who have an interest in this bill would pay close attention to the deliberations of this committee and would therefore be aware that last night there was an understanding that the committee would call on the minister and that if his appearance here answered the questions that were raised the committee would move to clause-by-clause consideration. I would say that those people would be well aware of that. I do not think that people at the very last minute would consider amendments and claim that they were not invited. I would think that they would have followed the procedure very closely.
I fail to see that there is a problem, because the committees are masters of their own agenda and usually function very well with the consent of all the members, which, I think, is what happened last night.
I understand what you are saying, Senator Lynch-Staunton, that as many people as possible should be aware. Again, however, if I had a particular interest in this bill, I would have followed the procedures of this committee very closely. I fail to see any objection for this meeting to proceed.
Senator Lynch-Staunton: I object as one who has followed the procedures of this bill very carefully. I only found out this morning that the minister was coming. If I only found out this morning, think of how all the others who are not following as closely as I am must feel about a minister appearing without their being aware of it. That was only decided this morning, as I know, because I believe that Senator Nolin, as I was told, asked for the Minister of Justice to come.
The Chairman: In fairness, that was a misunderstanding.
Senator Lynch-Staunton: He corrected what he said.
The Chairman: Yes. What he was alluding to was the appropriate minister.
Senator Lynch-Staunton: I have not seen the transcript yet.
The Chairman: Colleagues, we must proceed with the motion before us unless there is further discussion.
Senator Mercer has put a motion that we proceed to clause-by-clause consideration.
Senator Smith: I second the motion.
The Chairman: All those in favour of the motion to go to clause by clause please say ``aye''?
Some Hon. Senators: Aye.
Senator Robichaud: I am a member; am I?
The Chairman: Yes, you are a member.
Senator Robichaud: Aye.
The Chairman: All those opposed?
Senator Andreychuk: On division.
Some Hon. Senators: Nay.
The Chairman: On division.
Thank you very much, colleagues. We will now proceed to clause-by-clause consideration.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-3, to amend the Canada Elections Act and the Income Tax Act?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall the title stand postponed?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clauses 1 to 10 carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: It is all on division.
The Chairman: All on division.
Shall clauses 11 to 20 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clauses 21 to 27 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall the title carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Is it agreed that this bill be adopted without amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Is it agreed that I report this bill at the next sitting of the Senate?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall we go in camera, colleagues, to discuss briefly the observations?
The committee continued in camera.