Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6 - Evidence for February 16, 2005
OTTAWA, Wednesday, February 16, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-36, to change the boundaries of the Acadie—Bathurst and Miramichi electoral districts, Bill C-302, to change the name of the electoral district of Kitchener—Wilmot—Wellesley—Woolwich and Bill C-304, to change the name of the electoral district of Battle River, met this day at 4:10 p.m. to give consideration to the bills.
Senator Lise Bacon (Chairman) in the chair.
[Translation]
The Chair: We have a quorum. We will start the meeting right away so as not to delay our guests.
[English]
Today, we have on our agenda Bills C-36, C-302 and C-304.
Our witnesses today are from Elections Canada, in the persons of Mr. Kingsley, Ms. Davidson and Mr. Molnar.
[Translation]
We welcome you, Mr. Kingsley. You are used to our committees. We are going to hear from you, and I have the impression the senators have a few questions to ask you.
Mr. Jean-Pierre Kingsley, Chief Electoral Officer, Elections Canada: Thank you very much, and I thank you for introducing my two colleagues, who of course will join in the question and answer session, as usual.
[English]
I appreciate this opportunity to appear before you today on your review of Bills C-36, C-302 and C-304. I consider my appearances before Senate committees to be a clear reflection of my position as an officer of Parliament, that is to say, responsive to both Houses, and I welcome each one accordingly.
Bill C-302 and Bill C-304 would respectively change the name of the electoral district of Kitchener—Wilmot— Wellesley—Woolwich to Kitchener—Conestoga and the name of the electoral district of Battle River to Westlock—St. Paul. They would re-establish the names assigned by the independent federal electoral boundaries commissions for Ontario and Alberta respectively through the Electoral Boundaries Readjustment Act process. It would be a re- establishment of what the commissions decided as opposed to the changes enacted subsequent to that.
I have appeared on several occasions before this committee to discuss bills changing the names of electoral districts. Members of the committee will remember my testimony before this committee on April 1, 2004, during your review of Bill C-20, to change the names of certain electoral districts, for which, by the way, I was not called before the committee of the other House.
Bill C-36, the substantive bill before you, would change the boundaries of the Acadie—Bathurst and Miramichi electoral districts in New Brunswick. The electoral boundaries of Acadie—Bathurst described by the 2003 representation order were challenged before the Federal Court in Raîche v. Canada (Attorney General). The court quashed the boundaries set by the 2003 representation order, citing concerns over the application of community of interest and requirements under the Official Languages Act. The judgment itself provided no specific remedy.
The government established a commission of inquiry with the specific mandate to look at these two electoral districts and to reconsider the boundaries. I was consulted on this matter by the minister responsible and fully agreed with this specific mechanism in light of its independence in arriving at its conclusions. The commission tabled a report recommending that part of the Parish of Allardville and part of the Parish of Bathurst, including the Pabineau Indian Reserve No. 11, be transferred to the electoral district of Acadie—Bathurst. Bill C-36 was introduced to implement this recommendation.
The purpose of this bill is to change the boundaries of the two ridings. Unlike a bill that changes just the name of a riding, Bill C-36 affects the ridings in which electors are located. It will necessitate the added process of redrawing the maps as well as realigning the register of electors for these two ridings. The bill also provides a mechanism for the continuation of the registered electoral district associations within the current electoral districts.
Bill C-36 would come into force on the first dissolution of Parliament that occurs three months or later from the day on which this proposed legislation receives Royal Assent or when I publish a notice in the Canada Gazette indicating that the necessary preparations have been made to bring the new electoral districts into operation and that they may therefore come into force on the first dissolution of Parliament that occurs after this notice is published.
[Translation]
This latter provision is simply meant to allow the preparation period to be less than three months if my Office requires less than three months to complete its preparation.
As far as my work is concerned, changes to either the names or boundaries of electoral districts have an impact on our geographical products.
On September 21, 2004, I wrote to senators, members of Parliament and political parties, informing them that reprints of our products, reflecting changes introduced by Bill C-20, would be available by mid-November 2004.
However, soon after sending the letter, I became aware that more name changes would be put forward. Consequently, I cancelled the order for the reprint.
We are ready to do a reprint digitally at any time, and our Web site displays the up-to-date digital information reflecting the name changes resulting from C-20.
Despite the fact that there are other bills before Parliament, for instance Bill C-323, An Act to change the name of the electoral district of Welland, which received first reading on February 7, 2005, once Bill C-36, Bill C-302 and Bill C- 304 are assented to, we will reprint our geographical products.
The cost of reprinting our maps, atlases and other official products will be some $200,000. We also have to update our computer systems to allow us to produce preliminary lists of electors and related information, including the voter information cards, maps and geographical products required by candidates and parties during an election.
Under the Electoral Boundaries Readjustment Act, the Office of the Chief Electoral Officer is responsible for a number of duties with respect to redistribution, including providing support services to the commissions, and implementing their decisions through a variety of professional, financial, technical and administrative functions.
Electoral boundaries are systematically reviewed in this country by an impartial process and with the interests of the public clearly in mind. It is a redistribution process that is admired throughout the world.
But every system devised by humans can always be improved. It is in this context that my office plans to table, before the adjournment of this sitting of Parliament, a report containing recommendations to the Electoral Boundaries Readjustment Act. I have already consulted the chairs of the commissions to obtain their views on this matter.
This concludes my remarks. My colleagues and I would be pleased to answer your questions.
The Chair: Thank you. With regard to Bill C-36, this is a highly exceptional context. I would like to have your view on corrective measures that are logically necessary if we want to correct the situation adequately.
We can list them in two parts. Would it not be prudent to take action on the very definition of the main concepts that the commission is called upon to interpret? For example, if a proposal was made to amend the Electoral Boundaries Readjustment Act to include a clear definition of ``community of interest,'' would that not facilitate the work of the commission members?
Second, for the commission to be entirely independent and clearly competent, it is imperative that all its members, who have varying sensibilities, be on the same wavelength at the outset with regard to basic concepts they are required to use in performing their duties.
From a practical standpoint, would it not be a good idea to take a closer look at the means that could be used to intervene with regard to the training or instructions that future commission members receive before they take up their duties?
The purpose of this initiative would definitely be to ensure that everyone has the same knowledge and understanding of the legal concepts they must deal with throughout their terms. I would like to have your comments on that point.
Mr. Kingsley: First, you have raised the question of the definition on which the electoral boundaries commissions would act. I have gone through the text many times, and when you consider that an electoral boundaries commission chaired by a judge had one interpretation of the act and a Federal Court judge had another, it is obvious that matters have to be clarified, because these are lawyers, who ultimately have differing opinions.
I intend to look into this in further detail in order to make recommendations and try to develop this.
The way the definition works right now is that it highlights the number and states that the commission must first consider it and consider something else. But it can also, and it must consider, at the same time it considers the number, the community of interest and community of identity factors, and so on. Then it states that it can make changes to the figure. There can definitely be some confusion. I believe there is a way of clarifying this in order to be categorical, in order to know what the commissions' first priority is.
Is it one person, one vote? Is it effective representation? What is the place of the community of interest? What is the place of the official language communities? What is the place of the other minority communities so that we can say to the commissions: here, what is the place of the rural electoral districts, of the remote electoral districts? When does that come into play? When does it become more important than other factors? We can clarify all this further. It won't be easy because, when I go through all the documents concerning it, I see myself in the shoes of the commission members and I think: I am being asked to square the circle here. That is what we are being asked. It is very hard because people don't automatically all live in a single group in the same community. There are minorities within minorities. How do you deal with these things? It will be difficult, but I believe we can make another attempt.
As regards training, I am pleased to have the opportunity to go through this with you in the Senate. I did it in the House of Commons before the Committee on Procedure and House Affairs.
We held a conference with all the commission members who had been appointed, the judges and the other two members, over two days in Ottawa. We brought in everyone before they started their work, from the moment, or nearly from the moment they were appointed. I remember it was in mid-March or around then. We gave them a feel for the event. I called it a conference, although that may not be the right term. A half-day was devoted to an in-depth discussion of community of interest. We had three academics who made presentations to the some 30 persons. I sent invitations to the members of the Committee on Procedure and House Affairs, to the extent they wanted one. I did so long in advance. Five committee members were at the proceedings, including the Chairman. There was a real roundtable.
Professor Courtney chaired the session. He is recognized as one of the leading lights in Canada. All the commission members received copies of Professor Courtney's book, which is, as it were, the redistribution bible. Two other professors, Jennifer Smith and Mr. Pelletier from Quebec, came and made presentations on these concepts.
It cannot be said that there is been no opportunity. The judge and the other members had an opportunity to discuss the matter with them. What is the weighting of one particular factor? What comes in second place? We held these discussions, which produced the results we have seen across Canada. I wanted to share this information with you because I got the impression in reading the evidence that the people around the table were not aware of these conferences. That was the first time since the redistribution, since around 1965, when the act was passed, when all commission members had been invited.
Previously, I had initiated the process with the judges only in the exercise preceding the redistribution.
Laudable efforts were made by the commissions that came, by members and by my office to have in-depth discussions on community of interest.
[English]
Senator Milne: Mr. Kingsley, you spoke about redistribution and about trying to put a square peg into a round hole and about how difficult it is. Every time it happens in Ontario, it seems as though the commissioners start from the large centres of population and work out. As a result, we end up with small rural areas in between that are jumbled together into one electoral district when there is absolutely no community of interest there whatsoever.
I wonder if you are looking at ways in which that can be corrected, because what ends up happening is that people living north of Brampton are dealing with people who live north of Scarborough — not quite that far, I am exaggerating; there are some ridings in between.
In regard to this problem of a community of interest, perhaps we should start taking it to the Federal Court more often. Communities become so badly split up and divided, and people end up having to drive 60 miles to their electoral office — to some community 60 miles away, in a direction opposite to where they normally drive for everything else that they do — every other function they do, from doctor to lawyer to everything.
I know it is a difficult problem, but I believe it needs to be looked at again, in particular the training of commissioners, because they really are urban-oriented every single time. That is my first question.
My second question is this: Has the Province of Ontario readjusted its riding boundaries and names to agree with the federal ones, since the last federal redistribution? I know they did previously, but I am not sure they done it this time because. This affects voter lists, as you sharing lists back and forth.
Third, with respect to the voter lists, they were appalling during the last election. The level of accuracy was dreadful. I worked in three different urban areas in Toronto. With respect to each one of them, when people speak about voter turnout being low, the reason was badly inflated voter lists. Almost every single rental unit in Toronto had not only the present residents listed, but also the previous residents listed and sometimes the ones before that listed. The actual residents were telephoned during the election, their doors were knocked on, and they would confirm that there were incorrect names listed. There must be some mechanism to get names off the list. It appears that once names get on a voter list, they stay on there forever. This badly affects the accuracy of the voter count, the percentage of people who come to vote. It badly affects every single thing that has to do with the election. This happened in Toronto, it happened in Brampton, and it happened in Calgary, in the ridings where I was working.
This is aside from what we are talking about today — but I have you here. These are problems that are integral to our electoral system. In my mind, the move to a permanent voters list was a bad mistake. It may have been easier at the time, it may give you a list to work from, but it is not working.
Mr. Kingsley: Senator Milne, when you say that I need to look at — and you gave a prescription of things with respect to your first question — I presume you mean in terms of the report that I would table. In terms of the work I do, I do not need to look at those things. I am not responsible for the commissions. I have no responsibility whatsoever for what the commissions decide.
Senator Milne: Who trains them?
Mr. Kingsley: I said we voluntarily offered to set up that conference. There is nothing that prescribes that this occurs in the law, but I have extended that and done that voluntarily. I have explained that half the day was spent on one issue. We spent another day and a half on other matters relating to redistribution, so that they would understand their work. To the extent that one can have sessions with 10 judges and 20 other commissioners who are independent of mind, there is nothing that I can prescribe. I would not for one second prescribe anything to these people — not one thing. It is not the role of the Chief Electoral Officer; I made that very clear.
I appeared before two committees of the House of Commons. One committee was saying that I should not influence them, should not try to influence them; the other committee was telling me that I should. I said, ``I want to reassure everybody'' — as I want to reassure every senator — ``I do not try to influence them at all.'' I do not have to read their reports and comment on their reports to them. I do not have to appreciate their reports at all; I do not have to do anything with them except transmit them when they are finalized. That is my role.
Sustain all their activities — yes. Provide tools, which were lauded because of the extremely professional nature of the tools — all the commissions invariably commended us for the tools — that is what I do. I tax their accounts, as we say, in accordance with the law. That is what I do.
Senator Milne: Now that you have ripped a strip off me, Mr. Kingsley, would you please say something about the abominable shape of the voters list?
Mr. Kingsley: I am not attempting to rip a strip off you, but I am taking advantage of the opportunity to inform all the senators that there seems to be an impression that I am responsible for these things as Chief Electoral Officer, and I am not. I am not responsible for what the commissions do; I cannot be, by law.
It is something I have said — I would not even ask to be provided with this power as Chief Electoral Officer under the Electoral Boundaries Readjustment Act. You cannot have an independent body that is not independent.
Senator Milne: You have told us that.
Mr. Kingsley: With respect to the Ontario ridings, the ridings are the same, and have been so for a while. Ontario has effectively accepted that its boundaries would match the Ontario boundaries. With respect to the voters list, there are a number of things on which I can make a couple of comments.
We started off with 95 per cent of the names on the list; and we started off with 82 per cent of the names at the right place on the list, which was an improvement over the previous election. We also did targeted revision — that is to say, going door to door in areas where there is high mobility. Those are mainly apartment buildings. We have gone to residences for elder citizens — we target those as well — and we target student residences.
We went to 1,200,000 houses — 10 per cent of the 12 million residences in Canada — and knocked on doors with revising agents so that they could modify the list in accordance with the replies they got. The take-up was about 280,000 replies. If we use that model — and say the take-up is 280,000 after you have literally knocked on the doors of those places — what would we do if we went back to door-to-door enumeration?
Senator Milne: In the apartments where six people are listed as living there but only two people live there, no matter how many times you tell me that you go back time and time again to try to redo these high-turnover places, I was still seeing building after building after building with that kind of voters list prepared. Let me tell you, if someone wants to commit fraud on Election Day, with the laws the way they are, all an individual has to do is go to the garbage containers of those buildings and pick up all the cards that have been thrown out because they do not apply to those particular apartments. They are there in the garbage containers in the hundreds after the mailings have gone out.
If somebody was really determined to beat the electoral laws, they would go around and collect these cards, and go to a committee room where people are, in good faith, working away, and say, Oh, this name looks like it might be you; you go and vote for this person. They can just deal them out on Election Day like cards; and I know that that has happened.
I really do think that there has to be some way, some methodology that is developed to get names off the list. They go on, but they do not seem to come off.
Mr. Kingsley: Through you, Madam Chair, may I ask Mr. Molnar, who is responsible for the register, to reply?
Mr. Rennie Molnar, Senior Director, Register and Geography, Elections Canada: As Mr. Kingsley said, for these high-mobility areas particularly, we go door to door. When we are unsuccessful in reaching people, we do not remove the names that were there, of course. However, if we make contact at the door, what we do is make sure that only the people who actually live there are the registered electors; so any other names at that address will be removed from the list. Our challenge, in that case, is making contact with the people at the door.
Senator Milne: In these buildings, it has to be contact in the evening, because they are not there during the day. You say you went to 10 per cent of the houses. In an area like Toronto, 30 or 40 per cent of the housing is high-rise.
Mr. Molnar: In fact, 10 per cent is on a national scale. In urban ridings like Toronto Centre, Vancouver Centre, in some of those areas, more than 50 per cent of the riding was targeted. In those cases where we have high turnover, we go door to door in all those high-rises.
Mr. Kingsley: Certainly, there is room for improvement. I am not going to sit here and say we are not going to improve further. We have improved from the last election — and we are learning as we proceed. We are trying to get remedies as well in terms of the statute. I will be making recommendations to allow us to handle situations like this better, to get youth on to the list, because they are the problem case.
I will be coming forth to Parliament to make those recommendations before summer recess occurs. I am committed to providing two reports, one on redistribution and one on recommendations flowing from the management of the election. I will be broaching those topics. I do not want to sound as though we have achieved everything we want to under the register; we have not.
The other thing we have not succeeded in doing as fully as I would like is to have more ownership shared with respect to the register — with the political parties, with the members of Parliament. We have attempted to do this through the advisory committee of political parties, but it is not working as well as I would like it to work. We provide a list of electors to all the parties yearly and to all members of Parliament. We rarely get feedback of any kind. It is a very, very small number that we get.
Senator Ringuette: Just to make a correction, the list of voters is not distributed to members of Parliament. I have made calls to Elections Canada, and I was told that I am a senator and do not have access to voters lists.
Mr. Kingsley: That is what the law prescribes, Madam Chair, that I provide the lists to members of Parliament.
Senator Milne: There are two houses of Parliament.
Mr. Kingsley: The statute is very clear. That is what I do. If people wish to have that statute changed so that senators get the list as well, the law will have to be changed. I cannot send it. If I could send it, I would. It is a very prescriptive statute; I have made that point before.
Senator Mercer: First of all, welcome. We have had many of these discussions before. I find myself in an interesting position now that I am going to be your defender because I have a little more intimate knowledge of the work. I may be banished. I firmly believe some of the work that you have done and some of the changes you have made over the past number of years have been substantial, and I do want to credit you and your staff for that. There is no question, there is always going to be room for improvement. We are talking about human beings doing work, and many of the people involved are volunteers, so there are always going to be mistakes. Generally speaking, I think that the voters list itself is fairly accurate.
There is a need to refine how we identify — and when I say we, I refer to a collective we involving all the political parties and Elections Canada who are operatives in a particular electoral district — how we identify problems that you would not necessarily see that would be seen by a political party or by candidates. We need to find a way to engage that knowledge to get it back into the system. For example, we have had a call from the New Democratic candidate, the Green candidate and the Conservative candidate in this riding, and they are all saying something similar, then they are right, there is a problem. You might not see it from where you sit in the Jackson Building. Therefore, we need to find a way to engage people.
There is a problem, though, that Senator Milne has touched on and I witnessed it on Election Day. It was not fixable, obviously. That problem is the using of discarded cards — or, more precisely, what I saw were people who were coming to be registered at the polling station who were not on the list. They were coming in large numbers and were coming together.
I will describe the situation in the riding of Halifax — I was there; I was working in the inner city, because I know the community and I know some of the people. It was in an intercity poll, where the average income would be at least $10,000 below the national average income, a poor neighbourhood, where there is a lot of social housing — not that there is anything wrong with that. That is one demographic. The other demographic is that there is a large concentration of seniors in the city, with three seniors high-rise buildings and a very significant seniors complex. Those are the demographics.
Here are the people that I saw in line: I saw young, white men and women, all between the ages of 18 and 32. I am guessing at the upper age. They were probably younger than that. The older I get, the younger the young people look. I have lost my ability to judge that. The significance of my reference to the race is that this is a neighbourhood that is, not predominantly, but a very large percentage of the population are Black or new Canadians of non-white origin.
I asked the supervisor if these people had arrived together, and her comment was that three or four came together, but they all arrived within a relatively short period of time. I later analyzed the results of the poll, and I can tell you who they voted for pretty well because of the numbers in the polls. That is one case.
I can tell you of a case in Toronto in at least one riding where a significant candidate, significant in the sense of profile, now sits in the House of Commons. This incident that I mentioned, combined with the method that Senator Milne mentioned, was very prominent. I am sure these people never lived there.
With respect to people who on Election Day had their names added to the list — I support the system — there must be a method where we can go back and confirm with the post-election — after the vote is cast, we cannot do a thing about it. It would be interesting to test the system, would if not, by sending a card of some sort to the address that these people are giving with a return-to-sender feature — so that if it is undeliverable, Canada Post would return it to Elections Canada. I would like to see how many of those addresses would be verified, of those people who on Election Day said that they lived at 21 Elm Street did in fact live at 21 Elm Street. I suspect we would find, and I know in the riding of Halifax and a particular riding in Toronto, a large number of those cards would come back to you.
It should set off signals to us in the system, all of us, not just Elections Canada, that we need to accurately determine that voters at the polling station are who they say they are. If a voter shows up with a copy of a hydro bill that will identify them as being from 21 Elm Street — a hydro bill is not hard to get, especially if 21 Elm Street happens to be an apartment building. I think you need to do that.
I want to ask Mr. Molnar to give us the benefit of a very brief description of the mapping process, because we are talking about the change in the boundaries of two ridings in New Brunswick. I ask you this because I know it is good. I have seen the mapping system and how you do it. It is extremely impressive. Perhaps you can give a quick overview as to how it is done electronically. As well, it might be worth demonstrating at some point to members of Parliament or candidates, well before an election, so they can see the capabilities of Elections Canada in providing this service.
Mr. Molnar: First, we would be thrilled to show you our mapping and geographic processes and products. We are very proud of them. Fundamentally, we have a geographic database that spans the country. It has the names of all the roads, the rivers, and address ranges in it. We share the maintenance of this database with Statistics Canada. We have a joint team that shares in the update of this, and we have computer software that produces the maps required by candidates and parties during the election. We produce about 70,000 maps to cover the country. We always have a set on the shelf that is electronically ready, and we can print the complete set in 10 days with a private-sector printing firm.
One of the things that has evolved recently in the last election is the move to providing electronic maps. Previously, for parties in particular, we provided a national set of maps that would fill the corner of this room. For the last election, for the parties, we provided all the maps from Canada on one DVD, and they were able to load that in their computers and do all the searches they wanted. We have made a lot of progress in the mapping field and would be thrilled to demonstrate them for you.
Senator Mercer: We are back here changing the names of two ridings. One, the Kitchener-Conestoga, is an oversight. It happened in the process of redistribution, and we are correcting things that went wrong. I see there are bills before the House of Commons changing names again. Maybe we should have, by statute, a time frame, from the time of the return of the writ, maybe six months post or 12 months post, that interested parties would apply for a name change. Quite frankly, I think this is annoying. I know it is annoying and disruptive to you at Elections Canada, because it means more work and it means that you are not ready when you want to be ready.
Would it be useful to you to have a process that requires requests for changes to riding names 12 months from the return of the writ in order to have the name changed for the next event, rather than getting these requests every few months?
Mr. Kingsley: I intend to look at that matter as well with regard to the recommendations I will be making to both Houses of Parliament. I may consider going back to the recommendation of the Royal Commission of 1992, that we should try to stay away from geographic names, which tends to create a very long series of names because people try to incorporate as many places as they can, which is a natural tendency, and use historic names such as personalities that have marked the region.
I will consider all of these things, make recommendations and then rely on the wisdom of Parliament to enact the statute it wants.
Senator Milne: On your reference to historic names, former member of Parliament John Bryden went back to that practice and used historic names of communities within his riding, and the riding name got longer.
Senator Mercer: Mr. Kingsley is probably referring to the use of names of historic individuals, such as some ridings in Quebec use, as opposed to the geographic locations.
Senator Sibbeston: Mr. Kingsley, earlier in my life I had the opportunity to be the secretary to a federal boundaries commission in the Northwest Territories and had the experience of travelling to many distant communities and hearing people on this issue. One of the criteria to determining boundaries is the community of interest. I find it strange that a court would overturn the decision of a boundary commission that had been to the communities and heard the people. The term is not very specific.
What were the circumstances that led to the court overturning the boundaries commission? It is not clear in your statement. You talk about the 2003 representation order. Was that order made as a result of the study of a boundaries commission?
Mr. Kingsley: The commission in New Brunswick held hearings throughout the province. I have reviewed their work in preparing for this presentation. The commission stated categorically that they were applying the statute in a particular way. They took into consideration numbers, community of interest and so forth. They heard various representations, including from members of Parliament, and came to their own conclusion.
As I understand it, the Federal Court was of a different view of where community of interest should have been placed in the priorities of the commission. That is my understanding of that judgment.
Senator Sibbeston: I take it that once the court overturned the boundaries commission a commission of inquiry was established.
Mr. Kingsley: It was the minister's prerogative to handle the case in that way. As I indicated in my comments, I agree that this was a reasonable approach to it because that commission was also independent. It had a specific mandate that it could execute independently of the executive and independently of my office as well, obviously.
Senator Sibbeston: I take it that at the moment there is not a clear process provided for in the act to deal with situations where the court overturns a boundary decision. Could there have been other processes? Could the boundaries commission have been re-established to review its earlier decision? I take it there is a void in the legislation with respect to clear procedure for dealing with these situations.
Mr. Kingsley: Senator, you hit the nail on the head. There is a void in terms of handling a situation where a court has overturned a commission decision. There could have been alternatives. The Chief Electoral Officer could have been asked to settle the issue. That would have required a statute.
Senator Sibbeston: In your recommendations, are you going to suggest a method for dealing with this in the future?
Mr. Kingsley: I intend to take this case entirely into account because it arose after the House committee reviewed this matter. They made excellent recommendations for changes to the statute. I will be taking everything possible into account, including what process could prevail in these matters. I will also take into account to the fullest extent possible what processes could occur earlier that could obviate the need for this.
[Translation]
Senator Joyal: In fact, you have to both prevent and cure in your approach to resolving this issue. You have to ensure that, in defining the essential elements that the commission members must consider, there is as precise an understanding as possible of the redistribution process.
At the outset, you talked about community of interest in mentioning the constituent elements of the commission. However, you did not elaborate further, as you say on page 3 of your presentation on the requirements of the Official Languages Act.
Obviously, the New Brunswick question was essentially focused on the way the local communities interpreted their existence within the official language minority communities.
First, there is training for commission members, the definition of criteria, but also, before that, when the problem arises, that is to say when groups manage to reverse a commission decision, there has to be a way to address the solution of the new map in such a way as to comply with the principles of the act. That should not be overlooked when considering a solution to a problem such as this.
I often have the impression that, when faced with an unforeseen situation, we resort to Parliament, but not always necessarily in the best spirit of what the act originally provided for when you were appointed as an officer of Parliament, and not as a ``haut fonctionnaire'' of Parliament, as your translation states. That is a concept of Canadian administrative law. I refer to it because I saw the French translation, and you are described as a ``haut fonctionnaire'' of Parliament, whereas you are an ``officier,'' an officer of Parliament, which is quite different.
[English]
My colleagues will understand that there is a difference between a higher civil servant and an officer of Parliament. Those are two concepts under administrative law and public administration. It is important to remember that the spirit and the objective of the original legislation should be part of the solution that you will put forward in your recommendations in one of your two reports that you will table in June.
The other point I want to make is about the second report on the management of the election. On the issue of changing the names of ridings, members of Parliament have found a way to intervene in the management of the legislation. They have a way to do something that normally would be given to an boundary commission. Currently, we have three bills before the Senate, and there is one more coming to us. In this committee five years ago, we recommended that a process should be followed to maintain the original spirit of the legislation. I will quote a previous witness, Minister Mauril Bélanger, who appeared before the committee on May 6, 2004. At that time, we had the benefit of Senator Milne's participation. ``Your committee believes that the process in such cases must be clearer and more transparent. Your committee received submissions that reinforced the need for public consultation and input to respect the fact that residents of a constituent strongly identify with its name. There should be a requirement for some form of public notice in the constituency and provisions for public comments. Guidelines to this effect could be adapted from the procedure set out under the Electoral Boundaries Readjustment Act.''
We have repeated that for five years now and we are still at the same stage on the issue. We are flooded with a group of bills to change names. Once this committee stood the study of 12 such bills — about a year and a half ago. We have to find a solution within the boundaries commission that will clearly state the procedure that should be followed to prevent the kind of opening in the act that members of Parliament have found. I do not think that is fair with the spirit and objective of the original legislation.
Would you recommend in your report next June that there be, as we stated, clear guidelines that will be adopted in order to define the kind of procedure that should be followed in terms of electoral name changes?
[Translation]
Mr. Kingsley: As I stated earlier, I am going to try to make recommendations that, if accepted, will help minimize, if not eliminate, the need to make changes. In my recommendations, I am going to be sensitive to what the committee chaired by Senator Milne recommended at the time and to see whether I can incorporate it in my recommendations.
It thought that was a valid recommendation by the Senate committee. I intend to take it into consideration. I cannot take a position on it immediately because I have not considered the matter in a definitive way with my main associates. I was awaiting the outcome of the question that Bill C- 36 was going to raise in order to see how Parliament would dispose of it in order to allow me to make timely recommendations. If ever my report is unanimously accepted, I will be the most surprised of all.
[English]
Senator Joyal: I want to come back to this issue of your status as an officer of Parliament after I speak to this issue further. Senator Milne mentioned this and I would like to quote the famous section 17 of the Constitution Acts 1867 to 1982: ``There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.''
As you know, you are as much an officer of the Senate as you are an officer of the House of Commons. A prevailing opinion is expressed in some areas that because we are not elected we are not interested in the electoral process. It undermines our democracy, which is aimed at protecting the rights of minors to vote and exercise their other democratic rights in Canada. The Senate has a particular approach on those issues.
I was distressed when you made a statement in the House of Commons on November 23, 2004, that you should not be any more an officer of Parliament but an officer of the House of Commons — because we should lose our responsibility to end the dismissal of the Chief Electoral Officer. Of course, if we are barred from dismissing you, you are no longer an officer of Parliament but are an officer of the House of Commons. It would be a loss for the protection of the democratic process in Canada and the objectivity and impartiality that your status entails. I would like to hear from you whether, in your report on the management of the Electoral Act, you intend to make a suggestion that the Senate should be part of process of appointing the chief Electoral Officer so that he or she is on a par with other officers of Parliament.
Mr. Kingsley: Madam Chairman, the honourable senator has written to me picking up the very point that he has just mentioned. I replied to him. The context in which I provided my reply to the House of Commons is that, with respect to the appointment and firing of returning officers, there should be one authority. Whoever appoints is also the person who does the firing. In that context, the chair of the committee said: Well, in that case, what happens to you? That is when I replied that it would mean that the Senate would not be involved because the House of Commons is the one that appoints the Chief Electoral Officer under the present statute. I understand the point made by the senator and, when I replied to him, I said that the preferred course of action would be if the Senate were part of the process in the naming of the Chief Electoral Officer or appointment of the Chief Electoral Officer, rather than the reverse. That is the reply that I provided to you.
You asked whether I would incorporate that in my recommendations. I have hesitated to give definite answers, except in one case, which was yesterday before a committee of the House, about what I would include in the report. I will say that, yes, I will recommend that in my report.
Senator Joyal: We would be grateful, Mr. Kingsley. Each time you appear before us, you bring your wisdom of experience. I do not see anyone present at this table, with the exception of Senator Andreychuk, who has not been elected before.
Senator Andreychuk: That is not quite right. I do not think you can make those assumptions.
Senator Joyal: Most of us, if not all, have run in an election somewhere at some time. We pay close attention to the electoral life of Canada because it is part of Canada's democracy. We are the expression of the democratic will of Canadians in this chamber, too. Most of us have an intimate knowledge of the process. Senators take a keen interest in the implementation of the objective of the legislation, because it is rooted in the definition of Canadian democracy. We cannot just close our eyes to it because we are not elected. We would fail in our duty as senators if we were to simply rubberstamp any bill that came from the other place dealing with the Canada Elections Act. Our status may change one day but the Canadian population will decide that.
As long as we have the status, it is our duty to perform the task that we have. The two bills in front of us are important because they touch an essential element of the electoral life of Canada. That is why we look at your report with keen interest to ensure that you are supported by Parliament. We do not see you as somebody who chastises Parliament. We see you as being somebody we want to support to and give help and understanding to, so that Canadians have a better way of exercising their democratic rights in voting.
Mr. Kingsley: I know this is accepted by all the members. I have always appeared before this committee in full recognition and provided full answers to the questions in light of the fact that I recognize the role of the Senate and the committees of the Senate, in all statutes, all bills, dealing with elections.
Senator Cools: I wonder, chairman, if not today or for another day, Mr. Kingsley has raised an important question — that is, that the running of elections used to be the exclusive purview of the House of Commons. I do not know if you wish to comment on that, at what point the legislation was created. I believe it is some 60 years old. The running of elections was under the supervision either of the clerk or the Speaker of the House of Commons, and historically the Senate had no role whatsoever.
In accordance with some of the suggestions Senator Joyal has been making, perhaps we should take a look at the development of this entire process. Perhaps we should go back to basic principles, to discover what has happened, and to move forward again. There was a big to-do, for example, when the House of Commons surrendered its ability to try its own controverted elections. The judges did not want it. If we could revisit how the House of Commons passed this power and how the Chief Electoral Officer turned into an officer of Parliament — even the term ``officer of Parliament'' is shallow. There is no his constitutional history to ``officers of Parliament.''
If you look through the literature, you will find officers of the House. It seems to me officer of Parliament begins with McDonnell and the Auditor General. That is another story as to how we got there.
At another time, perhaps, we could invite a witness who could put some of this into perspective and assist the fact that these same recommendations seem to be coming forward in report after report. It may be a way to give the recommendations some stronger, firmer force.
For the record, chairman, since this exchange of correspondence was mentioned on the record, perhaps we could have copies of the letters, if Mr. Kingsley and Senator Joyal would not mind. It would be good for the record, to the extent that if they were raised they should form part of the record.
Perhaps, Mr. Kingsley could just respond to that one short point about the movement to transfer the running of elections from the House of Commons because it was exclusively their purview. The Senate had no say. In the role of the officer of Parliament, the Senate very much does have a say.
Perhaps Mr. Kingsley would like to comment.
Mr. Kingsley: With respect to the correspondence, I am most willing and I will leave Senator Joyal to answer for himself in that respect.
With respect to the establishment of the office, this occurred in 1920, when Sir Robert Borden was Prime Minister of Canada. The office was set up then, in an embryonic form, with the Chief Electoral Officer being created. Canada innovated; Canada was miles ahead of anybody else in the world. The next were the Indians, who a couple of months after becoming a country established an electoral commission. I believe that reference is made within their constitution, which is not the case in terms of my office. I am not aware of anything occurring between Canada and India.
I would be happy to appear at a later date whenever you are ready to discuss more fully the establishment of the office and follow that through to how it got to be what it is today.
[Translation]
Senator Losier-Cool: Thank you for the opportunity to take the floor. I am not a member of this committee, but I am the bill's sponsor in the Senate. I am very interested.
First, this is an issue that I have followed very closely because I lived in Bathurst for 35 years and I taught all those people. I worked very hard, I supported the commission, Mr. Oliver, and the mayors of the municipality. This is simply a matter of clarification.
I know that the independent commission was appointed by Judge Daigle; I applaud that independent commission. Who appointed the first commission? You probably said it. In that case, it was Judge Richard. Who appointed the commission members who studied the electoral boundaries?
Mr. Kingsley: The Chair of the commission was appointed by the Chief Justice of the province. And so it was that Judge Richard was appointed by the Chief Justice of the province of New Brunswick. The two commission members who accompany him and who are the other two members of the commission are appointed by the Speaker of the House of Commons. Of course these are people who live in the province. That is how the commission members are appointed. The Chair is appointed by the Chief Justice of the province, normally from among the judges, that is the sitting judges or supernumerary judges, and the other two members are appointed by the Speaker of the House of Commons.
Senator Losier-Cool: Those other two members must be from the province whose boundaries are being considered.
Mr. Kingsley: Yes.
Senator Ringuette: Thank you, Mr. Kingsley. I will not repeat the questions I asked you concerning the permanent list and the constant decline in voter turnout on election day. My question today more specifically concerns the entire process leading us up to Bill C-36, that is to say the costs incurred. I would like to know how much the sittings of the commission cost. I would like to know what the legal fees are in this entire matter, including your legislators internally. I am sure you have those professional services, I would like to know how much that cost.
Mr. Kingsley: I will have to get back to you in writing because I don't have those figures to hand.
At one point, I will have to consult the Privy Council Office because the commission of inquiry was established by the government. The expenses were incurred by the government.
The Chair: That was not your budget?
Mr. Kingsley: No. Part of the answer is not my responsibility. Now if the question includes an element as to how much it cost for lawyers to help prepare me today, I can consider that. The costs of the commission were incurred by the government, not by us.
Senator Ringuette: Is it your office that paid the commissions that do the redistribution?
Mr. Kingsley: Do you mean the electoral boundaries commission?
Senator Ringuette: That is the first point of the process.
Mr. Kingsley: If you are talking about those costs, I can tell you how much it costs for each province, for the entire country. In my answer to Senator Milne, I said that was a direct responsibility of my office, but I do not have the information to hand.
Senator Ringuette: The minority language community affected by this redistribution won its case in court, but it incurred legal expenses. Those small communities aren't entitled to any federal government largesse in the costly defence process.
Since the court found in favour of those communities, have you considered seeing whether Elections Canada could reimburse certain legal expenses incurred by them? I acknowledge that there is the matter of precedent, that this is the first time electoral disputes have gone to court. What is your opinion on the subject?
Mr. Kingsley: That case was against the Attorney General of Canada, not the Office of the Chief Electoral Officer of Canada. It will be up to the court to decide on any award of costs between the parties involved.
My office is not involved and cannot consider the matter. As regards cases heard as a result of the recent redistribution, the government program subsidized the interveners, in whole or in part. That was the case for the Société des Acadiens. I do not know how costs were awarded in that case, but that was the first time there had been a judgment of that kind.
The federal government was involved in funding, but not through the Office of the Chief Electoral Officer of Canada or through the responsibilities he holds under the Electoral Boundaries Readjustment Act or the Elections Act.
[English]
Senator Mercer: I have one question directly related to why we are here, and another one-off subject.
With respect to the subject, I am assuming and interpreting from what you have said to us that Bill C-302 and Bill C-304, the name change bills, as opposed to the boundaries changes, are not an issue. You will be able to handle that without any problem. It is more an administrative bump on the road.
A week ago yesterday, before the Gomery commission, the former member of Parliament for Saint-Maurice, the Right Honourable Jean Chrétien, was asked about donations made to his riding by Mr. Jacques Corriveau. The commission counsel requested confirmation of donations to the Saint-Maurice riding association of $5,009 and some odd cents, and Mr. Chrétien's recollection was a $1,500 donation.
I see, by the media, that you have since corrected that. I was called, as you might expect, at the break in the commission to try to help Mr. Chrétien's people understand what this was about. I certainly could not understand it when I went to the website and did some research. You have indicated in press statements that you have corrected the computer glitch that caused this problem. That is a good thing.
Have you advised all political parties and all successful candidates, members of Parliament, and maybe even the candidates, of this glitch, and that someone who has been doing research on political contributions may have encountered a problem, so that reporting and/or questions are more accurate? Is there a way for people who have been doing ongoing research — because that is one of the reasons it is there, so people can do the research — is there a way for them to come back to Elections Canada and verify that the data they have is indeed accurate, and not data that may have been corrupted by a computer glitch?
Mr. Kingsley: With respect to the bump on the road, what we have to do is put out our products with the changes once. If the Senate disposes of the bill — if it decides not to pass the bill or bills with respect to name changes — obviously the products will not be changed. The moment a decision is made, I will have to execute that decision. If it is name changes, I will go ahead. We are in a minority-government situation, and I have to have certain elements ready. If other name changes come forward and they are approved, I will have to redo the process.
I have held back in order that we not have to spend an extra $200,000. However, I am no longer able to hang on. I am hanging on by the skin of my teeth for this. We have a multitude of products that flow from this. It is not just the map. We have talked about the register, having to align things.
With respect to the software matter, it is a good suggestion that we write to people who may have used the site. We have put, at exactly the moment when one goes to that tool on that site, a proviso that makes it clear what caution must be used. We have now also started to include what is the last date where we made a change to the software. We have taken the necessary measures to make sure people appreciate it.
It must be understood that the right data is already elsewhere on the site. It is when people went to the search tool that an error was appearing. When we talk about a computer glitch, I want to make it clear that it is not the computer that made the mistake. We made the mistake and we have owned up to it.
Obviously, we try to make sure we do not make mistakes, but this one happened. I have already looked into what created it and what measures were to be imposed. However, I will take the suggestion in hand that we consider and we will write to the parties. By that, I mean not only the political parties, but others who may have used the site, if we can find out who did that.
[Translation]
Senator Joyal: In your presentation, you mentioned that Papineau Indian Reserve No. 11 had also been transferred. In your view, were the native people of that reserve formally consulted as to whether they wanted to be transferred?
Mr. Kingsley: I cannot answer officially as to whether that was the case. I remember an informal discussion from which I understood it was the case. That was a discussion with the chair of the commission of inquiry, but it was an unofficial discussion. I know all that was published and brought to the attention of everyone concerned by the readjustment of the boundary between the two electoral districts. I nevertheless wanted to inform you of everything that was affected in what I did.
Senator Joyal: You were entirely right to do so. Thank you.
Mr. Kingsley: I would like to add that points have been raised today concerning the National Register of Electors, and we have taken note of them. We are going back to the office with those points, and I intend to look more closely into the questions raised today and to inform the committee in writing of our views. Halifax was mentioned and electoral districts in Toronto; Calgary was also mentioned. We are going to see whether there is a way of obtaining more clarity. And if there are any points that committee members wish to raise, they need only write to me and I wll send them an answer. It is important that people understand what we are doing with the registry. And if the registry can become property of the Senate, I can only be proud of that fact.
The Chair: We have gone beyond the scope of the bills under study, but I must say that your testimony today was much anticipated by all committee members, who had a lot of questions to ask you.
Senator Joyal: I am going to table a letter formally.
The Chair: We will make copies of it for the members. And if you have anything to send us, we will distribute it to committee members as well. Thank you in advance.
Senator Ringuette: In view of Mr. Kingsley's answer concerning costs and the fact that costs have been incurred by the Privy Council in the entire matter of Bill C-36, would it be possible to write them and get an answer?
The Chair: I had thought we might see whether it would be possible for them to provide us with the costs. If it is possible, we'll give you the information.
Tomorrow, we are going to proceed with the clause-by-clause consideration of each of the bills. Unfortunately, a lot of people will be absent on the opposition side and we will not be able to discuss a screening of Bill C-38. That matter will have to be postponed until next week.
Senator Joyal: On the question of costs raised by Senator Ringuette, would it not be appropriate for us to make recommendations tomorrow? I raise the point for the people assisting us in preparing the report. You have heard us; Senators Kinsella and Ringuette raised the question, and I also raised the question previously. I think it would be right to make findings on the question.
The Chair: We can do that tomorrow during the clause-by-clause.
Senator Joyal: If we had a brief paragraph, a draft of a paragraph, that would be good. It is always easier for us to have a draft text. If it were possible to have it tomorrow so that we can look at it together in order to make the recommendation, it would simply go faster.
The Chair: The meeting is adjourned until tomorrow at 10:45 a.m.
The committee is adjourned.