Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence, September 19, 2006 - Morning meeting
OTTAWA, Tuesday, September 19, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 9:40 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are meeting today to continue our study of Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. The bill is more commonly known as the proposed federal accountability act. As senators, witnesses and members of the public, both here in the room and watching television across Canada, will know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of proposed legislation brought before Parliament in recent years. I know that the committee will give the bill the extensive, careful and detailed study that it deserves. During our hearings to date, we have held over 40 hours of meetings on the bill and have heard from more than 47 witnesses.
This week we will continue to look at various aspects of the bill, including accountability, ethics and conflict of interest, political financing, the parliamentary budget office, and access to information and privacy.
I am pleased to welcome Dr. Leslie Seidle, Senior Research Associate at the Institute for Research on Public Policy. Before joining the IRPP, Dr. Seidle was Senior Director, National and International Research, at Elections Canada. He has also served as Director General of Strategic Policy and Research in the Privy Council Office and as Senior Research Coordinator for the Royal Commission on Electoral Reform and Party Financing — the Lortie commission — which was established in 1989. Dr. Seidle is the author of a number of works, including Rethinking the Delivery of Public Services to Citizens and numerous articles on electoral reform, citizen participation, constitutional reform, public management and political finance.
[Translation]
The committee would like to thank you very much for your presence. I will now give you the floor, and afterwards we will have a question and discussion period which will, I know, be very helpful for the members of the committee.
Leslie Seidle, Senior Research Associate, Institute for Research on Public Policy, as an individual: Thank you, Mr. Chairman. I am happy to be here this morning and to be able to discuss this matter with you.
[English]
I will present in English this morning but I will be happy to respond to questions in French if senators prefer. Although I am a senior research associate at the IRPP in Montreal, the views that I will express this morning are my own.
The IRPP has a long-standing interest in governance and federalism questions. My reference to ``governance'' includes our democratic processes and how they can be strengthened. In that regard, under the leadership of Senator Segal, as he is now known, the institute began a major program in 1999 called Strengthening Canadian Democracy. One assumption of the program was that the decline in political participation, particularly but not only reflected in the drop in voter turnout, was potentially damaging for the democratic legitimacy of our institutions. Another assumption was that legitimacy is the product of various policies and practices. Thus the institute decided to look beyond the electoral system to address questions such as political financing, which we will discuss this morning; voter registration; parliamentary reform; the role of the media; registration of political parties; and other issues. This was before my time. Most of the papers from that series — at least the ones published to date — were released last year in a single volume called Strengthening Canadian Democracy.
I should like to mention one or two things in addition to the chair's comments about my background. As a doctoral student, I cut my teeth in this area and wrote my thesis on the regulation of election expenditure and party finance in Great Britain and Canada. The Canadian part was probably the more original, certainly the more recent, because in 1974 the federal government introduced the Election Expenses Act, which was a major piece of legislation and stood untouched in its fundamentals until the Bill C-24 reforms, which I will comment on in a moment.
Although I have not worked in this area in an in-depth way since I was at Elections Canada a couple of years ago, I keep this area on my radar screen. In May of this year I gave a paper at the University of Calgary on public funding of political parties and possible reforms that could be considered, building on Bill C-24. The first table in the brief before senators this morning is taken from that paper.
For senators and for our listening and viewing audience today, it is important to situate this piece of proposed legislation in the context of the Bill C-24 reforms that came into effect at the beginning of 2004. Bill C-24 was the most significant reform of political financing since the series of amendments to the Canada Elections Act in the Election Expenses Act of 1974. It represents a consolidation in that it was an addition to as opposed to a change in the principles that had been adopted in 1974. The 1974 act, as most of you know, was focussed on limiting the expenses of national parties, particularly, but also the expenses of candidates. It focussed more on the demand in politics. Campaigns had been rising in cost, particularly because of television advertising, which became popular in the 1960s, and because there was a series of minority governments in the 1960s resulting in more frequent elections. The imposition of spending limits was, in some sense, a measure that the political parties agreed on for their own financial health. Otherwise, with the continuing spiral and frequent elections, there was a risk of spending getting out of control. The principle of spending limits had a salutary effect. That was part of the debate at the time, which was more pragmatic than highly theoretical. Spending limits encourage fairness in the electoral process because they bring everyone down to more or less the same level when facing an election. One objective behind spending limits is to level the playing field.
Bill C-2 reforms, in contrast, focus more on the supply of money in politics. The introduction of contribution limits was a major step at the federal level. Contribution limits had been instituted at the provincial level starting in the 1970s, but there had never been a great deal of interest in them at the federal level. At the Lortie commission there was considerable debate on this but the Lortie commission recommended not instituting contribution limits. However, it did recommend a ban on foreign contributions, which was instituted in 1993. You might be surprised that until 1993 foreigners could still contribute to our political parties and to our candidates. With the reforms from 2004, we have tight controls on the supply of money to political parties and candidates from constituency associations and leadership and nomination contestants.
Judging from that list of players in politics, there is another point I need to mention. Through Bill C-24 the scope of coverage of our federal political system was greatly extended. Some 15 or 20 years ago it was suggested that leadership or nomination contestants should have to declare the source of their contributions. At the time people said no to that because such matters were considered private within the realm of the political parties and not subject to regulation. It is fair to say that the Lortie commission played a role in changing some of that argument. Pierre Lortie's view, shared by the commissioners, was that the amount of public money in the system even at the time made it entirely justifiable for the state to require reporting from leadership contestants and from those who were seeking their party nomination at the candidate level.
As senators are aware, the contribution limits that came in at the beginning of 2004 were an attempt to bring in what was called ``financement populaire'' in Quebec, from the 1977 reform by the Partis Québécois government. However, it was not entirely ``populaire;'' individuals could give a maximum of $5,000 to the different parts of a political party, but there was an exception. Business and trade unions could give $1,000 in total to constituency-level entities — candidates and local associations. For example, a small store could give up to $1,000 to a candidate alone or to a candidate in the constituency association. In a non-election year when there are no candidates, that store could give $1,000 to the local association. In an election year, people would have to plan more carefully because their limit was not doubled; they were allowed to give only $1,000 to the association and to a candidate of that party.
Bill C-24 reforms significantly increased public funding of the federal political process, through both new elements and changes to existing elements. The new element was the quarterly allowances paid to the political parties that qualified and the increased elements were as follows: The reimbursements to political parties were raised from 22.5 per cent to 50 per cent of election expenses; and election expense limits for parties were raised, in part because the definition of ``election expenses'' was changed, and this pushed up the reimbursements. Not only did reimbursements rise to 50 per cent but also they were 50 per cent of a greater amount of maximum election expenses. The most advantageous part of the tax credit scale — the 75 per cent reduction of income tax paid — was moved from $200 to $400. For example, if you give $400 to a political party or to a candidate, it costs you only $100 because you receive back a $300 tax credit. The result is a significant increase in public funding, which I will come back to in a moment when I speak specifically to Bill C-2.
It might be too early to assess fully the consequences of the reforms of 2004. That is one reason I have a concern about one of the provisions of Bill C-2.
Today I will address only the provisions on political financing and enforcement in Bill C-2. I am generally familiar with the bill, but I am not an expert authority on the other parts of the proposed legislation.
Regarding finance and enforcement, the extension of time limits for initiating investigations and prosecutions makes sense, particularly in light of the scope and the complexity of regulation that will apply not only after the changes made under Bill C-24 but also once this proposed legislation is brought in. Mr. Kingsley has said on the public record that some of the events that occurred in the context of the Gomery commission were immune from his prosecution, or from the commissioner's investigations, because they occurred too long ago. I think there would also be a problem with retroactivity. Nevertheless, the point is that when you have a very complex regulatory system with tight limits you need to have quite a long period in which things can possibly be investigated and prosecutions can be launched if warranted.
There are provisions on trust funds in Bill C-2, and the prohibition of transfers to candidates through a party or constituency is long overdue. It should have been done in Bill C-24, but it would have been quite complicated to enforce because of the small opening for business and trade union money at the local level. If Bill C-24 had been entirely ``financement populaire,'' it would have been easier to bring in a ban on transfers from trust funds.
I also support the abolition of the $1,000 limit for business and trade union donations. This was an unfortunate last- minute change to Bill C-24 in response to the Liberal caucus that tarnished the overall policy direction of the legislation. It added considerable further complications to the Canada Elections Act as it was amended through Bill C- 24 by disallowing transfers from constituency associations. As I understand it, these transfers were disallowed because the money at the local level came from various sources, including business and trade unions, or could, whereas at the national level the money had to be single-sourced — in other words from individuals only. You would have been muddying one kind of water with another kind of water. I will leave it to you to judge whether one kind of water was purer than the other.
Turning to the new limits coming in for individual contributions, I should like to put on the record a concern that the limits, and there is more than one limit, have been presented as a new $1,000 limit. That is not correct. There are two limits of $1,000, if you set aside the limits that apply to leadership contestants. The limits for leadership contestants are special cases; they do not occur every year so I think one can take them outside. Before there was a $5,000 envelope for an individual and that person could divide it up in the way he or she wanted to locally or nationally. If you wanted to send all your money to Ottawa, you could do that. If you wanted to split it in half, you could do that. If you wanted to send it all to the constituency association in an election year, you could do that. If you wanted to give it all to a candidate in an election year, you could do that.
Under Bill C-2 there are two envelopes instead of one; $1,000 for the national level and $1,000 for the local level. It will not vary from election year to non-election year. This is consistent with the previous reform. If you choose to give your money only to a political party, you can give $1,000. If you choose to give your money only to a candidate, you can give $1,000. If you are flush and committed, you can give $2,000; you can give $1,000 nationally and $1,000 locally. It is unfortunate that in the interests of building support for the legislation, which has a lot of virtues, an incomplete picture has often been presented.
I wish to comment now on the policy basis for the $1,000 limit. When he appeared before this committee, the minister said that no comparison was done with provincial experience. I would be surprised if the officials involved in drafting the bill did not consult with Privy Council Office or perhaps get support from Elections Canada. If no comparisons done with provincial experience, I wonder what has happened to our policy development within the Government of Canada.
Legal counsel from Treasury Board told you that the $1,000 was arrived at in the following way: They calculated that 99 per cent of political donations are under $1,000, so $1,000 seemed to be a good number to put into the legislation. With respect to the legal profession, I find that a very odd basis for a policy change that is not purely a legal matter. The fact that 99 per of the political donations in the country are under $1,000 is not a sufficient reason to set the threshold at $1,000; it is a piece of information, but not a very pertinent piece of information.
I wonder whether the contribution limits are perhaps a bit too tight, a bit too low. I would refer you, in the context of provincial comparisons, to the first table at the back of my brief, which is taken from the Compendium of Election Administration in Canada that is on the Elections Canada website. The version posted is from 2003, but I verified with someone in the research group at Elections Canada that the figures are still accurate. In other words, there have not been any significant amendments at the provincial level to make the table that I reproduced out of date. Five provinces have election limits on either amount or source; two provinces, Quebec and Manitoba, have the ``financement populaire'' model — Quebec has had it now for almost 30 years while in Manitoba it dates from shortly after the election of Gary Doer, so it is more recent. Quebec has the lowest limit in the country, a $3,000 envelope. Again, if you give $3,000 locally, you cannot give at the provincial level and vice versa. That is an envelope for each elector, each year. It does not change in an election year. The $3,000 has not been adjusted since 1977.
On the other end of the spectrum you will see that Alberta has quite a generous limit, $15,000 to a party per year. My reading of that is that you could give to more than one party; you cannot stop people from giving to more than one party. You can give an additional $30,000 to a party during an election. Again, my reading is that during an election year, someone who was rather generous could give $45,000 to a particular political party. There is quite a variation among provinces in the limits, both in the nature of them, because there are two that allow only individuals to give, and in the amount of the contribution that is allowed.
Considering these provincial limits and the much broader scale of federal political activities — whether at the national level or at the candidate level, bearing in mind that national constituencies are considerably larger than provincial ones, with the exception of Ontario — one must ask whether $1,000 times two is the appropriate maximum. I am particularly concerned about national political parties. I think $1,000 at the local level is probably defensible, but $1,000 to national political parties does raise questions about the revenue capacity of our national political parties.
There are assumptions behind Bill C-24 and also behind Bill C-2 that have not been stated publicly. One is that if we change the rules, political parties will adjust in admirable ways and, all of a sudden, we will have a new level of activism across the country and there will be tens of thousands, if not hundreds of thousands, of people giving to our political process who never did before.
That would be a wonderful thing if it happened. I wish it would, but I am not optimistic for a number of reasons. One is that, with a couple of exceptions — maybe the Cooperative Commonwealth Federation, CCF, and the Parti Québécois, PQ, in the early days — we have never really had mass parties in this country.
Many of you have been political activists. I do not think it is unkind to political parties to say that, particularly in non-election years with the exception of leadership contests, our political parties become empty shells. This is particularly the case in parts of the country where the parties are not strong. I do not think it is the case in downtown Toronto for the Liberals, in many parts of the Maritimes, probably in Alberta for the Conservatives and so on, but I could go across the map of the country and point out areas where I think the empty shell metaphor probably applies accurately.
Some political parties have done well raising large amounts of money from small donors but others have done less well. This is true both before Bill C-24 reforms and since. We always have to ask: Could the ones who are doing well find themselves in a different situation in five years' time or in two years' time? Rules that were written with the current context in mind might not be so congenial to the party that was doing well raising large amounts of money from relatively small donors. When one looks at public policy, we should always look beyond the snapshot of today. We cannot know what things will be like in five or 10 years' time, but we always should be mindful of that. I wonder whether that possibility has been taken into account with these new, much lower contribution limits.
When I was at the Lortie commission, in research for my thesis, I looked extensively at political financing in other countries. One thing that happens is the more you tighten the screws, the more likely something will escape. It is like valves on an engine or a machine.
Is there a chance that may happen in the federal political process? We have seen a couple of examples recently. The Volpe campaign received a considerable number of $1,000 donations from the executives of a pharmaceutical company, but donations did not stop there. If the press reports were accurate, and I assume they were because there was more than one, donations went so far as $1,000 each from two 11-year-olds who happened to be twins.
Perhaps a more serious concern, because of the amount of money involved, is the loans that some leadership contestants have taken out for the Liberal race so far. More loans may come in, but the reports from the last couple of weeks situate them in the $500,000 range. Where is that money coming from? Is it all money from the source that might be declared or might eventually be declared? Will it all be paid off in the end? These are all questions.
The regulation of leadership contestants is not as tight or severe as that of political parties and candidates. When you have envelopes of $500,000 — I am not suggesting they are actually in cash, that happens in Montreal restaurants — when you have amounts of money like this moving around in the system, I think there is reason to stop for a moment and say, is that because these people find it difficult to raise sufficient funds when some of them have decided to apply the $1,000 limit already, even though legally it does not apply to their campaigns? Neither Bob Rae nor Stéphane Dion would be considered marginal candidates in the Liberal Party race, yet they have found it challenging to find sufficient income for their campaigns.
The other thing that could happen if the pressure of these valves gets too high is that political parties could say we are not making it with private funding. It will not happen, this multiplication of effort and so on will not occur, and so we need more public funding. Eddie Goldenberg was quoted recently as saying perhaps the funding of leadership contestants was overlooked when Bill C-24 was drafted. Maybe it was overlooked. I was somewhat involved in the early stages of that bill and I do not recall it being an active issue at all. Nevertheless, someone could say five years from now, we should have public funding for leadership contestants. It might be a difficult one for people in the political class to dispute, regardless of their political affiliation.
Would the public be open to a further increase in public funding of the federal political process? If you look at the first table you have before you — this is from the paper I did earlier this year — the first group of figures is for 2004, which was the last election for which data were available at that time. I have taken together the quarterly allowances for the year, plus the reimbursement that each party received, and I compared that to contributions from individuals that each party received that year because, of course, contribution limits applied. In the right-hand column is the proportion of public funding to private funding for the five major political parties, the ones that qualified for quarterly allowances.
In the case of the Bloc Québécois, public funding is more than six times that of private funding. In the case of the Liberals, it is over four times. In the case of the Conservatives, it is 1.7 times; in the case of the NDP, 1.9 times, nearly twice; and in the case of the Greens, 2.3 times.
This is an election year, so in non-election years the proportions would not be as high because there are no reimbursements. I compared like with like. In the following two groups of figures, you have election year 2000 and election year 1997.
If you compare the two years for, let us say, the Liberal Party — because there was the merger of the parties that formed the Conservative Party, so it is not exactly like with like — in election year 2000, public funding to the Liberal Party was 14 per cent of the party's private revenue. The private revenue included business and union contributions. It is a sea change in the sources of money going into the federal political process.
If, as a result of pressure, people were to turn toward public funding — bearing in mind that nothing is magic about this kind of information, anyone can do the calculation I did for this paper — I think a real question is to be asked about the public reaction to further increasing public funding of the political process.
To sum up, when one looks at political financing and its further regulation, particularly in the case of Canada where the regulation is already extensive, it is important to take a holistic look and ask, if you turn one valve here, what might happen to the rest of the apparatus.
Finally, I will return to a comment that the Treasury Board minister made when he came before you, and others have made as well. To be fair, it was also made by another political party. It was made at the time of the Bill C-24 reforms that were initiated by Prime Minister Chrétien. We need to be modest when we draw a link between the likelihood that confidence in political institutions and politicians is going to rise if we somehow get political financing right. I think it has a beneficial effect and I think we have gone a long way in this country. Our legislation from 1974 was looked on by many countries as exemplary.
Some countries do not believe in spending limits. In the United States, the Supreme Court does not believe in spending limits. Therefore, it has never been copied south of the border, but other countries have taken lessons from Canada. The British finally brought in party limits in 2000 and so on.
However, we need to be modest about the linkage between those two things. Lots of things are happening that have led to a decline in confidence of our political system, our political institutions and politicians, and the decline goes way beyond political financing. It is a trend throughout democracies. It is not just a Canadian thing or a North American thing.
It is perhaps an unfortunate development, but it sets a challenge to those of us who strongly believe in parliamentary institutions and the importance of the electoral process. It sets us a challenge to continue to scrutinize things and to try to improve them, but at the same time to have a critical eye and to ask whether the effects might not be entirely positive, as we continue to change some of them.
The Chairman: You indicated that you were familiar with the evidence given by Professor Aucoin and Professor Franks. We also had a number of political parties come before us and speak about many of same issues. Have you read that testimony?
Mr. Seidle: I have read most of it, yes.
The Chairman: Are you familiar with some of their concerns about the limits that you have just described?
Mr. Seidle: Yes, and I should emphasize that I am not parroting anyone's view on this. I wrote these notes before I had the time to read the transcripts from the other political parties. I carry no brief for a political party, as some people who know me from previous lives would agree.
The Chairman: When you were talking about the President of the Treasury Board, you said the minister had made no comparison with provincial experience. You went on to say that the legal counsel for the Treasury Board said that 99 per cent of political donations were under $1,000. You said that that is some information, but it is not the most pertinent information that one should use for making that determination. What is the other pertinent information that should be used besides the fact that most contributions are under $1,000?
Mr. Seidle: One of the most pertinent pieces of information is the various provincial contribution limits. I am not suggesting that we simply multiply by geography or multiply by electors because we would be way over $5,000.
The Chairman: Why is that relevant to the federal level?
Mr. Seidle: It is relevant because you should be looking at the scale of political activities. If it is considered sensible policy to have a $3,000 limit in a province that represents about 25 per cent of the population, having only a $1,000 limit for national political parties seems to be out of proportion.
If we were to do the multiplication, it would take us up to $12,000 for a federal political party. I am not suggesting that we approach it in such a simple way, but a limit of only $1,000 to a federal political party is low, particularly when incentives in the federal tax law are greater than any in the provinces. There is an incentive for people to give contributions that might be larger than they would give to provincial parties or candidates.
The Chairman: I understand that pertinent test. Are there any others?
Mr. Seidle: The other information would be to look at the pattern of financing of our political parties. We should err towards parties that have relied quite extensively on individuals. Speaking empirically, the Liberal Party of Canada would probably not be the best guide because, until the Bill C-24 reforms, its reliance on business was, by many people's estimation, greater than would have been desirable. A portrait of the financing of parties would lead us towards suggesting something higher than the $1,000 limit.
The Chairman: You say that the level of public funding post-Bill C-24 is now very high. What is the standard against which you are judging the current level?
Mr. Seidle: There are two answers to that. One would be the sheer amounts. I do not have those numbers in front of me, but your staff or I could certainly provide them to you. If you add up the value of the allowances in a given year, the reimbursements, the reimbursements to candidates and the imputed value of the tax credit, those figures, particularly in an election year, are very large amounts of money.
The Chairman: By what standard are they high? They are high compared to what?
Mr. Seidle: What makes them high is, in part, that they are very large amounts of money.
The Chairman: Compared to what, though?
Mr. Seidle: Let me return to my brief and the table and answer your question from another angle. My point about them being very high has more to do with change over time than it has to do with absolute amounts. I shall have to concede in response to your earlier line of questioning that absolute amounts can be judged in the eye of the beholder. However, look at the data in the table and compare year 2000 to year 2004: the scale of the increases is very large. The proportion is 14 per cent compared to 405 per cent for the Liberal Party, and that is the difference. That is a very significant increase from anyone's point of view, I would think.
Senator Zimmer: Thank you for your presentation. It was very well researched and laid out.
You said that maybe it is a little early to do an assessment of 2004 reforms. I agree with that. We have had no major problems since we went to limits of $5,000 and $1,000. When you say that it is very high now, are you referring to the total amounts of donations that parties are receiving, or are you talking about the individual at $5,000 and the company at $1,000?
Mr. Seidle: I do not believe I used the now famous phrase ``very high'' in relation to either of those. I used that when I was talking about public funding, referring to the increase in the amounts of public funding, and particularly, as I just emphasized, the relation between public funding and private funding.
Senator Zimmer: You used other good comparisons, as we did about two weeks ago when we looked at comparisons in Canada and abroad. I would like to refer to the ones in Canada, as they are more relevant. Alberta, Manitoba, New Brunswick and Quebec have comparable or larger limits than the federal limits. You have also indicated that five years from now, as the screws are tightened, things get missed and things leak out. Sometimes things change, and you may create legislation you regret later on, so maybe we need further sober second thought. You also indicated that convention fees, which were missed the last time, could be included.
I also agree with you that the argument that 99 per cent of donations are under $200 or $300 does not present the total picture.
What are your recommendations today? Would you leave the limits at $5,000 and $1,000, or do you want to readjust those to lower limits? As you indicated, the legislation proposes a change from $5,000 to $2,000, in addition to convention fees, which could make it $3,000 in a year, but that comes once every four years. Would you recommend that the $1,000 limit be eliminated or stay the same?
Mr. Seidle: I would be comfortable leaving the $5,000 envelope as it is. However, if it is felt that for policy reasons there should be further lowering of the limits, one could consider the sum of the two limits, $2,000, being put up to at least $3,000 or perhaps $4,000 — somewhere between the status quo and what the legislation proposes.
In policy terms, I am more comfortable with the former approach, the single envelope, setting aside the leadership contestants and so on. It provides more flexibility to a citizen and potentially greater revenue for the national political parties from someone who wishes to go up to his or her limit and give that only to the political parties. In a sense, that has been communicated as a $1,000 limit. I explained that it is not exactly a $1,000 envelope, but in the case of someone who gives only to national political parties, that person has seen his or her contribution limit drop from $5,000 to $1,000.
I would like to see more room for people to give to national political parties, whether through an envelope with two limits or through a single envelope with one limit.
Senator Zimmer: I agree that lowering from $5,000 to $1,000 is a 60 per cent to 80 per cent drop, which is dramatic. The former Chief Electoral Officer, Mr. Côté, recommended going in the other direction, and you have indicated that in your research, increasing it to $15,000. We had small parties here about ten days ago, and each of the representatives indicated leaving the limits the same. Their testimony was that if the limits were lowered any further, they will find alternative methods; they will go underground. We must keep that in mind to ensure that we adjust this legislation to be able to deal with those issues, that we do not force individual parties to go in different directions and do things we do not want them to do.
Mr. Seidle: Just in that context, one of the things that is noteworthy about this part of the bill — and I did not address this before, but I feel that I must put it on the record — is that you can draw an arrow between some elements of the Gomery story and this part of the legislation, but the financing of political parties in the usual sense of the word was not the central element in the sponsorship scandal. The Rambos who have now, with some exceptions, been taken to court and faced criminal charges and in some cases are in jail were not party fundraisers. They were people sitting in government departments running programs. It is unfortunate that we are tightening political finance, perhaps more tightly than we should, and we are doing a whole range of other things because four or five people took the law into their own hands.
I must take this opportunity as a former public servant to express my great disappointment at the degree to which the public service has been besmirched because of all that has gone on in the last several years. The vast majority, 99.99 per cent of public servants would never think of doing anything remotely close to what went on in the Gomery context. This was an exceptional event in exceptional times. Unfortunately, it was tied to one of the things that I have spent most of my career fighting for, which was keeping this country as one country. To justify based on the exceptional case of national unity was not sufficient, and it is unfortunate we got into all this because people thought they could change the morals of politics and of public administration because we were trying to keep the country together. We will never keep the country together if we resort to that sort of thing. God help us that anything close to it should ever happen again. The line between the sponsorship scandal and this part of the legislation is, to my mind, far from a solid black, bold, dark line.
Senator Stratton: This is a small addition to Senator Zimmer's statement that there were four political parties a week ago who were all in unison advocating larger limits. There were two parties yesterday, the NDP and a small Aboriginal party, the First Peoples National Party of Canada and both recommended lowering the amount down to $1,000. It is not unanimously opposed across the board. As well, in Manitoba the limits were dropped. The Progressive Conservative Party of Manitoba used to rely on large donors. They had to readjust, I have checked and verified this, and they are now in the black. They have paid their debt, they have adjusted and they are doing reasonably well with the new limits. It is a learning curve.
The Conservative Party of Canada does very well because it gets most of its support from small donors. It is a matter of adjusting over what amounts to a surprisingly short time to this new lower limit. As Mr. Freeman stated a week and a half ago, it is called the democratization of fundraising. You take the perception of big business out. Would you not agree?
Mr. Seidle: It is not surprising that the political parties do not come with one view on this. I would be perhaps a little bit unsettled if they did.
In response to Senator Zimmer, let me make it very clear that I do not support any increase in the limits that were brought in under Bill C-24. I could be comfortable leaving them as they are for a time. One of the great difficulties with these sorts of things is that if they are proven unsatisfactory or if there are unintended consequences, it is not that easy to change them. The Canada Elections Act is not just opened up willy-nilly from time to time. There used to be a tradition that changes were made only by consensus. That was broken with Bill C-24. I believe in certain respects, although political party spokesmen do not necessarily all speak from the same page on this, that there is not an all- party consensus on this legislation either.
Senator Day: I will try to keep my supplementary question very short. I just wanted to clarify whether your schedule with respect to Manitoba is correct. There was a suggestion that Manitoba had changed its limit. Is the limit $3,000 for Manitoba?
Mr. Seidle: The person I consult at Elections Canada told me there had been no changes to these since 2003, but you might want to verify that with the Chief Electoral Officer. As I report in my brief, this is from an Elections Canada document that is dated 2003 and has not been updated on their website since.
Senator Zimmer: You are correct, the amount in Manitoba is $3,000. To respond to Senator Stratton, he is correct that there were two other witnesses who said what he indicated. It sent a clear message that there are other options out there for smaller parties. The message they were sending was to make sure we do this legislation right because we do not want to do things that are illegal, immoral or unethical. They were sending us a message. As far as Mr. Freeman and Mr. Côté are concerned, they were diametrically opposed. A man with 20 years of experience as Chief Electoral Officer in Quebec and an academic gave their recommendations; they were widely opposed in views. I am not recommending we increase. I recommend that we basically stay the same.
Another issue is the eye of the beholder, and you are right, sir. It is perception. We hear these words of open, transparent and accountable. By the way, I think your assessment of Gomery is correct. It is not related in the same way.
As far as open, accountable and transparent, what numbers do you decide? I do not think that has anything to do with the limits. You can be open, transparent and accountable at one dollar or $1 million. It is not the amount of money; it is the conduct of the individual. You have expressed that clearly in your report on Gomery.
Returning to the convention fees, would you agree that they should not be included in this legislation whereby they are additional amounts or separate amounts?
Mr. Seidle: This legislation could have provided an opportunity for that. However, it is not a major reform of political financing under the Canada Elections Act. Leadership convention fees should be treated in the same way as one might treat fees for other events. Let us say the fee is $900; if there are $300 worth of services provided, including the administrative charges of organizing events and so on, that amount should be deducted. The rest should be considered a contribution. It should be reported, so long as the fee is over $200. The tax credit should apply. Whether it applies to the whole amount or to the $600 in my example is a matter for debate. I have not gone into this area in great detail. My understanding is that there is either a legal opinion or some form of multi-party agreement between Elections Canada and the political parties. I suggest you probe this issue in more detail with Mr. Kingsley.
Senator Zimmer: Regarding an implementation date, we heard from some parties that a date of January 1, 2007, would be acceptable. Others have suggested 2008, given that it takes a while to educate the public, who may make donations early in the new year or later this year. The problem is that if donations are made too early and the law changes, the whole amount must be rebated. It makes it extremely difficult to implement the changes.
What implementation date would you suggest?
Mr. Seidle: My recollection with Bill C-24 is that the parliamentary debates concluded in June and the implementation was in January. There has been a tradition, and it may even be in the act, that the Chief Electoral Officer must be given six months not only for the political financing but also in other amendments. That seems to be reasonable. I do not see why one must wait until 2008.
On the other hand, we are not making a qualitative change here, with the exception of trust funds, for example, which are not of concern to the public in their daily business. A short implementation period would be appropriate.
It is not so much that people need to know how they are to behave. It is up to those who are likely to receive money from citizens to explain what the new rules are. For example, the single envelope is no longer a single envelope; it is essentially two envelopes with $1,000 for each envelope.
Senator Baker: Mr. Seidle, I am interested in two general opinions you ventured at the beginning of your address. First, the penalty provisions under this proposed act and under the Canada Elections Act may not be able to be extended to cover events that were included under the Gomery commission because of what you claim was retroactivity. I presume you are referring to retroactivity of the law, but the law has not changed. The circumstances of a completion of an investigation have changed, to which you said that you approve this new 10-year extension of time in order for an indictment to be laid or charges to be laid.
Are you aware that about 10 months ago the Ontario Court of Justice declared section 473 of the Elections Act to be of no force and effect for election year 2000 because it violates the Charter? The natural extension of that decision would be that 10 years after an election takes place you could have a court declare a section of the Elections Act to be of no force and effect 10 years previous. Have you thought about that in your support for this new 10-year extension of prosecutions under the proposed act?
Mr. Seidle: I am not aware of the Ontario case. In response, first, I am not a lawyer. I do not want to delve into this in great detail. You will have Ms. Davidson here in a few minutes, and I am sure she will be able to respond fully to your question.
A court might take a different view of other circumstances under the ``reasonable limits'' clause as part of section 1 of the Charter. I think the 10-year period is there only for very exceptional circumstances, and some of the unfortunate events addressed in the Gomery commission would fit into the ``exceptional circumstances'' category. I hope we never have anything close to that again in Canada. If we do, it might be useful if the Commissioner of Canada Elections had that span of powers.
Senator Baker: I understand what you are saying, and the chair is well aware of that particular provision of the Charter.
The particular case I am referring to involves what happens to money after it is collected and after an election is over. Section 473(2)(b) was declared a violation of section 3 of the Charter, and the decision of the court was that it was not saved by section 1. This is not being appealed.
I understand what you are saying, that another court might look at section 1 and say it was saved. It was not saved.
Therefore, I get back to my original question: Have you really considered not only the effect on the person charged of a summary conviction offence 10 years after the fact, which is unfair, but also the effect on the legislation regarding fundraising and disposal of monies under the act? Taking into consideration that a provision of the Elections Canada Act concerning money was declared of no force and effect in a particular case, do you still agree with having a 10-year limit on prosecution?
Mr. Seidle: One thing to bear in mind about the Canada Elections Act — and I believe the federal legislation is different in this way from a number of the provincial elections acts — is that there are enforcement mechanisms, such as compliance agreements, that are much less brutal than convictions.
Senator Baker: Do you plead guilty?
Mr. Seidle: Yes. You have to agree to behave correctly in the future. This is posted on the commissioner's website. It is a gentle rap on the fingers. These mechanisms are used much more than the more brutal instruments available under the Canada Elections Act.
When looking at an enforcement period, you must also consider the enforcement tools available. If we had a tradition in Canada of several people being given very stiff fines or being disqualified from sitting in the House of Commons, that would fall under a different context.
Senator Fox: In your document you refer to the limits in Quebec being $3,000 total per electoral year. Is that the case, or is that the total electoral year per party?
Mr. Seidle: I should have stated per party.
Senator Fox: Under the federal legislation, it is not total electoral year but total electoral year per party.
Mr. Seidle: We tend to refer to them in that manner because it is quite unusual for people, particularly in Quebec, to donate to more than one political party.
Senator Fox: At the provincial level?
Mr. Seidle: I would think it is quite unusual, bearing in mind the divide that is not just ideological.
Senator Fox: I would be less surprised than you.
Having clarified that, I want to address the question of contributions by unions and companies. Under Bill C-24, major changes were brought in with contributions by corporations and trade unions limited to $1,000 per year for the whole country at large. In other words, it was not $1,000 per constituency, but $1,000 was the maximum that a company could contribute.
Do you have the numbers available as to how much money was contributed under Bill C-24 by trade unions and corporations under that $1,000 limit?
Mr. Seidle: I do not have that data. That is available on the Elections Canada website. Both candidates and constituency associations must file reports — candidates within four months and associations within six months.
In theory we now have the associations' 2004-05 reports; 2005 had to be filed by the end of June 2006. Are we four months from the election? Yes. Therefore we should have the candidates for 2004 and 2006. I do not know whether anyone has done a summation or rolling up of those because, of course, each candidate and each constituency association reports separately. Again, I suggest you ask Mr. Kingsley about that. The financing division of Elections Canada may have done the roll-ups.
Senator Fox: I guess we will get those numbers. Would you not agree that those were seminal amendments? It was one thing to talk about big business making major contributions to political parties before Bill C-24, but now, for instance, the Royal Bank can only make a contribution of $1,000 once a year. If incorporated, the green grocer down the street can only make a contribution of $1,000 a year. Was that whole notion of domination by corporations or trade unions not done away with by the amendments in Bill C-24? Should we not consider that a company should retain the right, albeit highly limited under Bill C-24, to participate in the democratic process by making a $1,000 contribution once a year to one candidate in the country? Why are we eliminating that? What is the wrongful thing that we are trying to eliminate by taking them out of the picture completely?
Mr. Seidle: I am mostly a pragmatic person and I would normally be inclined to agree with you that Royal Bank does not exert undue influence by giving $1,000 to a constituency association in Newfoundland or Quebec. However, the legislation was developed initially based on a principle of citizen-based funding of the political process, not just parties but the constituency associations and so on. I believe that principle is sound. You have heard evidence that it may not be respected to the absolute letter of the law in Quebec. You can ask Mr. Kingsley whether he thinks it is working at the federal level from the point of view of citizens. With respect to the Quebec situation, first, the law is somewhat different, but if a law is not working one should look not only at the principle behind the law but also at the enforcement of the law. My understanding is that there may have been cases in Quebec where the enforcement could have been more rigorous.
Second, in the Quebec case is the fault in the principle of citizen-based funding or is it perhaps that the $3,000 limit should have been adjusted somewhere along the way, or both? When I was at the Lortie commission we came across an entry for Desmarais in one of the political reports, and there were four contributions of $3,000 all grouped together. Of course, the street address was not listed but we were quick to conclude, based upon the first names of the donors, that this was indeed four donations from one family. Is that immoral? Is it questionable? I will leave that to the beholder. Maybe if the amount had been adjusted upward to $6,000, the money coming from that single address might have been divided differently. Perhaps the Quebec legislation, with due respect to that jurisdiction, may be due for a bit of tweaking.
Senator Fox: I understand your position on citizen-based financing, but can we agree that the bogey that the corporations of this country are still controlling, through contributions to the political process, the political agenda of this country should be laid to rest in terms of political financing? I cannot see anyone anywhere in this country introducing legislation because a bank or a green grocer has given $1,000 to a political party. It becomes farcical in fact.
Mr. Seidle: The myths of yesterday will eventually disappear. At the same conference that I attended in Calgary, Tom Flanagan gave an excellent presentation — unfortunately it is not on paper — which was very candid and explained the success over the last several years of the Conservative Party and its antecedents. It was very convincing. When that paper is eventually published in the book next year, it will not only show how the Conservatives have been successful but it will show how that party became, over time, even before Bill C-24, much less reliant on business than it had been the 1950s, 1960s, 1970s and so on.
Senator Fox: I find it a bit odd that we make comparisons between contributions allowed under a provincial act and those allowed under a federal act without at the same time looking at the public contribution that is made each act. My favourite example, as a former riding association president and as a former candidate, is that the Quebec Elections Act foresees that the public will pay for representatives in a poll on election day. Compared to the great big principles, this is a very picayune matter. However, an individual candidate in his or her riding is looking at financing of $30,000 during an election campaign. It is not quite fair to make comparisons. I am not saying that you are making those comparisons, but when one is making comparisons of total amounts allowable under a given act, one should take into consideration what is actually being paid for in the provincial act. That has all sorts of practical consequences in a province like Quebec, which you mentioned before, where basically your organizations tend to be the same federally and provincially and where people provincially can foresee they will be receiving approximately the same amount as a returning officer for their day of representing a party in the polls, whereas at the federal level you have to try to convince them to do it on a purely volunteer basis or you have to pay them the equivalent of what the provincial party would pay.
Mr. Seidle: I agree with you. If you are looking at provincial laws, it is not entirely a question of apples and oranges but maybe apples and crabapples. Some things can be learned from the laws and the experiences of the provinces. Quebec first limited election expenses and introduced reimbursements in 1963, thus we have had that element of political finance regulation in this country for more than 40 years. We have quite a long history to draw on now.
Senator Milne: Mr. Seidle, I appreciate your greet expertise in this field. You have raised valid questions in your presentation regarding the proposed spending limits in this bill. However, you have chosen to name individuals here in this privileged hearing. We are protected and you are protected by parliamentary privilege in this hearing. Therefore, I will do the same.
While Bill C-2 imposes a limit of $2,000 on donations to a party, Alberta has a limit of $15,000 per year, and $30,000 in an election year. Is that a reflection of the relative importance that some politicians place on provincial politics as compared to federal politics?
Mr. Seidle: I am sorry; I did not quite catch the gist of what you are getting at.
Senator Milne: I am asking about the relative importance that federal politicians may be placing on provincial politics as compared to federal politics.
Mr. Seidle: I know no evidence of that.
Senator Milne: I think you used the term ``inadequate reasoning'' about the development of this $2,000 limit.
Mr. Seidle: I simply was surprised that the minister should say that no provincial comparisons were made. First, it is potentially helpful to look at those comparisons. There is no magic answer here: $2,000 is not perfectly right compared to $5,000. Second, at the same time, I would be surprised if the officials supporting the minister had not done that kind of research. When I was involved in the early preparation of Bill C-24 not only did the people in the core policy group look at provincial experience, but the Department of Finance did a series of simulations on what different limits would mean to the different political parties — in other words what would be lost, how much of a gap would there be between the status quo ante and the new measures. Even though there is not a department of election policy — it is done out of a section of Privy Council Office — it is quite usual to bring together a special team, as was done for Bill C-24, and to have people do quite in-depth research. I managed a research unit for five and a half years for Stéphane Dion and no stone was ever left unturned. Sometimes until 30 minutes before the speech was pronounced Mr. Dion was asking us to check the accuracy of a figure or a piece of data and so on. To suggest that provincial comparisons were not done I would suspect is unjust to the officials.
Senator Milne: I thank you for that reply.
In the media reports about the current Liberal leadership race, the candidates have been remarkably transparent regarding their loans and contributions and have corrected any problems that may have come up. Dr. Seidle, do you know who contributed to Stephen Harper's leadership campaign for the Canadian Alliance? Or to Peter MacKay's campaign for the Progressive Conservatives? Should those contributors have been made public?
Mr. Seidle: They would have been if the Bill C-24 reforms had been put in earlier. Until we put in those requirements for leadership contestants it was up to the parties to decide what they were going to disclose. The Bill C-24 reforms were a step in the right direction. They were consistent with the policy directions of the Lortie commission, even if it was some 12 or 13 years after the report was tabled. Often royal commission reports sit on library shelves for quite sometime.
Senator Milne: Finally, with your expertise in political financing, do you think the donation limits listed in Bill C-24 are fair and balanced? I believe that is what you have really just told us. What about the limits proposed in this bill? Should the limits for donations be changed for election years? In Alberta the limit is doubled for an election year. What about the years when there are two elections? That does happen.
Mr. Seidle: I would not propose that we start departing significantly from the policies in Bill C-24. There is no distinction there between election and non-election years. To develop policy on the off chance that there might be two elections in one year would be unwise.
I answered your first question earlier, which is, where do I stand on the limit in this bill and what do I think of the ones in Bill C-24? I think that Bill C-24 reforms brought down contributions sufficiently that, to pick up on Senator Fox's point, the chances of people thinking that either an individual or, at the local level, a business or union could exercise undue influence through that amount of money are very low indeed. That is part of the reason I am not sure we need to go down quite as low. If you cannot prove undue influence at $5,000, how can you prove it at $3,000? Why go all the way down to $1,000 in the case of someone who wants to give only to a political party?
Senator Joyal: It was very stimulating and interesting to listen to you, Dr. Seidle. My first question deals with small parties. You might have had an opportunity to read their testimony. One of the witnesses clearly concluded that a group of small parties might contest the limit at $1,000 on the basis that they are precluded from public financing with the threshold at 2 per cent at the national level and 5 per cent at the local level. In other words, they are hit both ways. Looking at your chart on public financing for parties, I am struck by the discrepancies. They are even bigger than one would have expected to see in real figures.
You did not address the impact of the bill on small parties. Did you have an opportunity to reflect on the impact of the bill on the democratic debate in Canada? In other words, how that bill should help small parties to be part of the debate instead of the contrary? The law of unintended consequence applies here more heavily on the small parties than on the national parties that already receive the plum of public financing.
Mr. Seidle: I am not a lawyer, but I would not advise a small party to take this proposed legislation as a way of contesting the thresholds for access to public funding. Those thresholds were put in place in 2000, or new thresholds were introduced for the access to reimbursement. Then when quarterly allowances were instituted through Bill C-24, the same thresholds were applied to the annual allowance.
You could make a court case against those limits as being a bit high for a small party. One argument that has often been used internally is that you must have thresholds at a certain level, otherwise they will come in and raid the treasury. However, the long and short of it is that it is vote-based now. If a small party received 1 per cent of the vote nationally, the amount of money it would get is not that great anyway. This argument of raiding the treasury and the need to protect the taxpayers has never been a sound argument.
It makes no sense for a political party to use the contribution limit to make that argument. It is an access question as opposed to a revenue question.
Senator Joyal: My last question is about the overall impact on the electoral system of Canada. You have spent a lot of time in your life, since the Lortie commission and your doctoral thesis, on the electoral system in Canada. I am concerned that we are on the path to bureaucratize the structure of party life in Canada; there is no question about that.
The additional concern is that we have no other example in the Western world in which the public financing of parties is that important. The more the money comes from the taxpayer, the more you can expect that the Chief Electoral Officer, and the law generally, will go after the money. In my opinion, there is an unintended consequence that what we had hoped would become a broadening of the base of the party may not materialize at all. In fact, the parties will rely more and more on public financing.
The Bloc Québécois's annual budget before Bill-C24 was around $800,000 or $900,000. Now they receive at least $2.5 million a year in contributions over and above the base of public financing. In other words, even supporters of the Bloc Québécois do not need to give money to that party; they have more than what they had spent in the previous 10 years of their existence.
The parties are now becoming extensions of the electoral office and the Chief Electoral Officer, and that has many consequences. The public money that the parties receive and rely upon has become so important that we have created a unique system in the Western world: we will have a party system that becomes a state system, along the lines of what the Soviet Union was before. That is more or less what we have is now. We have a party system in Canada in which the majority of party funds, more than 60 per cent, if not 80 per cent or 90 per cent of the funds, and in the case of the Bloc Québécois, almost 100 per cent of the funds, come from the government. The more you have government money the more people will expect that one day they will be under government rule and on the government cheque. That is a preoccupying concern regarding the involvement of citizens into their party's life.
We no longer have volunteer groups, we have an extension of the Chief Electoral Officer's office — reporting, auditing, checking — even for the leadership convention. There is no more freedom in any party.
Are you not concerned about the impact overall of the proposed legislation?
Mr. Seidle: Indeed I am concerned. That is why, towards the end of my comments, I suggested we need to take a holistic view of these things and we need to consider the impact of one change on the other part of the system.
To return to your comments, I looked at the party contribution reports for the April to June period of 2006. The Bloc Québécois provides the example of the greatest skewing between public and private funding. During that period they received only $27,567 in contributions from private sources. As well, they received $727,092 from public funding. Those figures equate to 5 per cent and 95 per cent. I read a press article in which a spokesperson for the party said there was a lag in donations. It may well be that this trimester was a bit of a wild card, but we will wait to see what the difference is.
An argument is made that low contribution limits can lead to activism and popular fundraising, et cetera. Certainly, there were periods during the earlier years of the Partis Québécois when that was true. There are also arguments in the literature that low limits can lead to the argument that you made: parties can become stultified and not have to make much of a citizen-based effort because they know that in each quarter, in this case, they will receive $.75 million.
Senator Joyal: As well, Bloc supporters say that because their party receives such a large amount of public money they would redirect their financing at the provincial level. It is, as you said, a holistic reality. The same person is supporting a party at the provincial level instead of at the federal level. Your comments were very wise. The situation cannot be seen in a vacuum. What the contributor gives at the provincial level, he will be tempted to give also at the federal level. He will make a judgment where his contribution will be more helpful. That too is an important element to take into account. When you include a contribution limit in proposed legislation you trigger a reaction elsewhere in the system. You are correct in saying that, and other witnesses have warned us about it as well. This is not a vacuum exercise in that it affects the entire political spectrum — provincial, municipal and federal, especially in Quebec because of the ideology that is most visible.
Senator Stratton: I want to go back to the contribution limits, because we are talking about reality and perception. The reality is that under the existing law corporations and individuals can contribute $5,000 equally. I will use the example of a group sitting at a board table of a corporation, law firm or engineering firm. A decision is made to make a contribution to a political party. The ten members sitting around the table can decide to make a contribution of $5,000 as a board of directors and $5,000 each as individuals. If all ten members agree, that is a significant sum of money from one place. That creates both the perception and the reality of the influence that corporations and individuals can have through contributions. The change in perception, if not reality, of influence would be significant if the limit for individuals were reduced to $1,000 and the corporate contribution were eliminated.
Mr. Seidle: That is a fair comment. I would hope that there are not many corporate board tables in the country where that kind of semi-collusion occurs.
Senator Stratton: I was part of a company where we sat at the table and had that discussion. That is reality.
Mr. Seidle: Perhaps we need fuller disclosure of political contributions in this country. There was an opportunity missed in Bill C-24 and there is another opportunity missed now in Bill C-2. Something as simple as asking people to declare their employer would help us to find whether cases of semi-collusion exist in Canada. People are not to give money that is not their own and if they are giving from their own money and being reimbursed through performance bonuses, they are coming dangerously close to giving from money that is not their own. People should think twice about doing that, because the spirit and the intent of the law is not in that direction. The committee might want to pursue this with Mr. Kingsley and Ms. Davidson.
Senator Day: I agree wholeheartedly with that last answer. I do not believe that there is an extensive amount of such collusion. Certainly, I hope there is not.
Mr. Seidle, your written document states that the policy basis for reducing the amount to $1,000 times two has not been clearly explained. Are you aware of the policy basis?
Mr. Seidle: I could read only what is on the public record. I read Mr. Baird's comments in the House and before this committee. The single explanation was that 99 per cent of donations are less than $1,000. I believe Mr. Baird was asked a question about that, which he deferred to the legal counsel. I am no longer a public servant and I have not been working as a consultant on any of this proposed legislation so I am not privy to any fuller information. I wanted simply to make a point about policy development in respect of important legislation. I was surprised by what I read and determined that it should be put on the public record.
Senator Day: Would you support a minimum age for contributors?
Mr. Seidle: Yes, I would support the definition of ``elector'' as the basis for making political contributions.
Senator Day: You would concur if the committee were to introduce an amendment to improve the bill in this area.
Mr. Seidle: Yes, that would be a modest improvement.
Senator Day: When you explained the British party system and their amendments in 2000, you indicated that limits were placed on party spending. Does the British system have a limit on overall spending of a party in a calendar year?
Mr. Seidle: No, but I recall that they consider the election period to be that part of the year prior to the election plus the election period, which must make for some tricky accounting. At the local level they have had candidate spending limits since 1883 but for the election period only. In comparative terms, those limits are very tight. At the same time, the British do not allow political advertising on television or radio. One of the major sources of spending pressure during an election campaign is not open even to parties.
Senator Day: In Canada we have spending limits during an election period. Would you support spending limits on political parties throughout the year?
Mr. Seidle: No, I would not support that. We do not need to go down that road. We have a quite reliable system of spending limits that have been improved through the expansion of the definition in 2004. Some small improvements might be required over time, but the change you mentioned is a qualitative change, and I would not agree with that.
Senator Day: We do not need to get into the pre-election period. You explained that the British system has a pre- election period. Here, we would simply require a bit of fine-tuning and following the existing rules.
Regarding the implementation date for this proposed legislation, you talked about six months. Mr. Kingsley will come before the committee to speak to that, but other witnesses have suggested January 1 as a good time because political donations are calculated for tax purposes in a calendar year. In that way, contributors who might have over- contributed do not have to go through reassessments to determine whether the law is retrospective or retroactive. Those issues disappear with the January 1 date.
Mr. Seidle, you said that it is up to the collectors to explain the rules. The collectors cannot simply say, ``We can now take $1,000 instead of $5,000.'' They have to explain the change in rules to the contributors. Tax-planning contributions or contributions through various activities would all have to be adjusted. It would be an absolutely horrendous task if, on December 25, you had to go back to all of the contributors on your list and say, well, the contribution rules have changed.
That is why we have been looking at January 1 as the implementation date. Bill C-24 was passed in June, with six months to the implementation date — perfect timing. If this law is declared in late 2006, would it not be reasonable to set January 1, 2008, as the implementation date for these changes, particularly considering the contribution limits?
Mr. Seidle: The six-month period for implementation had been a tradition. I believe it was in the act and may still be in the act. It is not up to me to respond for the Chief Electoral Officer on that.
Certainly it would be neater and more understandable both for party organizers and for individual citizens if the legislation came into effect at the beginning of a calendar year. I do not know how long your deliberations will take or what recommendations you will make or how long the House of Commons will take to respond, but if your work were completed in November and this bill were adopted by both Houses and everything neatly tied up by the end of November, I would not see a problem with January 1, 2007.
Parties are quite capable. We are not making a qualitative change here, we are not moving into a new world as we were at the beginning of 2004 with the contribution limits. We are changing some numbers and there is a bit of a qualitative change with the two envelopes, but that is minor compared to the world we moved into. You can ask Mr. Kingsley about the degree of consultation and briefing of political parties that occurred during the last half of 2003 en route to January 1, 2004. I was part of that when I was at Elections Canada. There are mechanisms through the advisory committee, political parties and so on. I would imagine that the people in the political parties are beginning to think about getting ready. If a number in the proposed legislation were, by some chance, to change between now and proclamation, they would have to change that in their electronic files and so on, but if they are not already getting ready for January 1 or an earlier date, they should be.
Senator Day: I gather you agree with me that it should be a January 1 implementation date; we just disagree on whether it should be January 1, 2007 or 2008.
Mr. Seidle: I said simply that it would be more practicable and understandable if it were January 1 of a year.
Senator Day: You appreciate that there is no January 1 implementation date in this bill at this time?
Mr. Seidle: I am aware of that.
The Chairman: Dr. Seidle, on behalf of the committee, thank you very much for your interesting presentation.
Our next witnesses are very well known to members of this committee and play a central role in ensuring the proper functioning of our electoral system. Jean-Pierre Kingsley was appointed Canada's Chief Electoral Officer in February 1990. Since then, he has been responsible for the management of all federal electoral events, including the 1992 federal referendum, the 1993, 1997, 2000, 2004 and 2006 general elections and numerous by-elections.
Jean-Pierre Kingsley has instituted significant changes within the Elections Canada organization, as well as orchestrating and implementing major electoral reforms. His accomplishments have contributed to Elections Canada's reputation as a world leader in electoral management.
Mr. Kingsley is joined today by officials from his office. Diane Davidson is Deputy Chief Electoral Officer and chief legal counsel. Janice Vézina is senior director of political financing, audit and corporate services. William Corbett is the newly minted Commissioner of Canada Elections.
Welcome to all of you. After you make your brief presentations, honourable senators will pose a number of questions, at which time we can engage in a give-and-take of questions and answers.
Jean-Pierre Kingsley, Chief Electoral Officer of Canada, Elections Canada: Thank you very much, Mr. Chairman. I am much beholden to you for the very kind presentation as well as for having presented my colleagues. On that note, you have a copy of William Corbett's curriculum vitae, which allows you to see how his 35 years of experience have led him directly into this very natural position.
The first part of my remarks will be in French; the latter part will be in English.
[Translation]
As I indicated to the Legislative Committee on Bill C-2, this bill will transfer the authority to appoint and dismiss returning officers from the governor in council to the Chief Electoral Officer. This is consistent with recommendations I have been making since I became Chief Electoral Officer. You in fact heard me make that recommendation when I appeared before the Lortie commission.
The bill provides that the transfer would take place after royal assent, on a day specified by the governor in council, should it come to pass. In response to a question raised by Senator Comeau during the September 7 proceedings of this committee, I would like to advise the members that the bill will not affect the process of appointing deputy returning officers and poll clerks, two essential people in any polling station.
The deputy returning officers and poll clerks will continue to be appointed by returning officers from lists provided by the candidates of the registered parties that finished first and second in their electoral district in the last general election.
The bill also proposes to remove the current ability of corporations, trade unions and unincorporated associations to make contributions at the local level. Bill C-2 lowers the existing cap on contributions by individuals to various political entities of a party per calendar year from $5,000 to $1,000, as indexed.
Contributions to leadership candidates, which would also be reduced to a maximum of $1,000, would remain separate from the contribution limits I have just mentioned, and would be indexed. As I stated before the Legislative Committee on Bill C-2, the provisions on contributions would come into force once Bill C-2 receives royal assent. My office is preparing an advertising campaign to inform Canadians of the changes as soon as possible after royal assent is received.
Bill C-2 will subject Elections Canada to the Access to Information Act. It will thus add a supplementary and separate access scheme to the extensive rights of access that have existed under the Canada Elections Act since 1927. Under the bill, the Chief Electoral Officer will have to comply with the existing provisions of the Access to Information Act, but will be required to refuse any request to disclose a record that was obtained or created by or on behalf of a person conducting an investigation, examination or review in the performance of his or her duties under the Canada Elections Act.
This exception aims to protect Elections Canada's review of financial returns as required under the act. It will also afford the Commissioner of Canada Elections, who investigates alleged breaches of the act, similar protections currently granted to other investigative bodies under the Access to Information Act. This particular extension to the exemption was added in response to suggestions to the Legislative Committee on Bill C-2.
[English]
Bill C-2 will not diminish the existing rights of public access to electoral matters already provided by the Canada Elections Act. In fact, the public will have new rights of access, such as access to exchanges between Elections Canada and political parties, members of the House of Commons, candidates and senators, all of which are now treated in confidence by my office.
Section 540 of the Canada Elections Act currently expressly prohibits access to election documents after an election without the consent of a judge. The committee may wish to ensure that this protection is maintained by recommending in its report on this bill that Schedule II of the Access to Information Act be amended to include section 540 of the Canada Elections Act. This will ensure that the provisions of the Access to Information Act are not interpreted as overriding the current protection afforded by section 540 to election documents.
Bill C-2 transfers the responsibility for prosecuting offences from the Attorney General to the proposed new office of the director of public prosecutions. Prosecutions of offences under the Canada Elections Act, which currently are the responsibility of the Commissioner of Canada Elections, will also be transferred to the DPP.
The commissioner will continue to conduct investigations, enter into compliance agreements and seek injunctions, but alleged breaches of the Canada Elections Act that the commissioner believes warrant prosecution will be referred to this new DPP. The DPP will decide whether an investigation under the Canada Elections Act will advance toward prosecution. That will be his sole decision.
Before concluding, I understand the committee may wish to hear my views on convention fees. Elections Canada has been supplying consistent information to registered parties concerning the contribution rules that apply to their convention fees. According to section 2 of the Canada Elections Act, a contribution can be monetary or non-monetary. Any voluntary provision of money, property or service, minus the commercial value of any tangible benefit received in return by a donor, constitutes a contribution.
Both the definition of non-monetary contribution in the act and section 408, which deals specifically with fundraising events, make it clear that the amount of a contribution shall not include the commercial value of any tangible benefit received in return. A non-monetary contribution is a contribution to the extent that it is provided without charge or at less than its commercial value.
The opportunity to influence or the right to participate in the political life or decisions of a registered party, registered electoral district association, candidate, nomination contestant or leadership contestant, including the right to attend political conventions, does not, under the act, constitute a tangible benefit to be excluded from the value of a contribution. Therefore, a fee paid to attend a political event of a registered party amounts to a contribution to the party, except where the attendee receives some tangible benefit having a commercial value. Such benefits could include meals or lodging. The matter of convention fees is currently the subject of complaints filed with the office of the Chief Electoral Officer, as reported by the media, as I am sure you have read. The policy of Elections Canada is to refrain from commenting so as not to prejudice any possible investigation that may be materializing.
That concludes my remarks. My colleagues and I would be pleased to answer your questions to the best of our ability.
Senator Zimmer: Mr. Kingsley, thank you for attending today and presenting to us the impressive posse that you have brought.
You touched lightly on political contributions, and it appears to be more of a report, but I should like to have your opinion.
In 2004, legislation came out to lower the political donations to $5,000 for an individual and $1,000 for a company or a union. We barely got past two years of that with no real assessment being done. Our previous witness, Mr. Seidle, indicated that even though he had done a lot of research, he did not have an assessment on how productively or well that law was performing.
Having said that, what is your opinion of lowering the amounts since then from $5,000 for an individual to $1,000 — it is really $2,000 because you can make a separate donation to a party and association — and eliminating $1,000 from a company or a union? It appears as if the legislation from 2004 is working quite well, but to do that without a further assessment or time elapsed appears to be an overreaction. What is your opinion on that?
Mr. Kingsley: I certainly shall not express any opinion with respect to characterizing it as an overreaction or whatever.
We have done a preliminary review of the financial impact of foregone revenues. Obviously, it will be in the area of contributions by corporations, unions and other associations. With respect to the lowering of the limit, I believe 98.5 per cent of all contributions are under $1,000 now by individuals. The financial impact of that is relatively minor.
Perhaps I could ask Ms. Vézina to explore further in general terms the financial impact of foregone revenue. Perhaps there could be other questions that you may wish to raise.
Janice Vézina, Senior Director, Political Financing, Audit and Corporate Services, Elections Canada: We conducted an analysis of the calendar year 2005 regarding electoral district associations registered with us, as well as an analysis of candidate returns following the thirty-ninth general election. The analysis is based on the information as submitted, and we have not yet finished our review of that information, so it is subject to change somewhat.
Based on the preliminary information that we have looked at, we see that for electoral district associations for the five larger parties in receipt of the allowance, there is a net surplus of assets overall. They are not in a deficit position when you look at their financial records. They are in a surplus position to some $12 million.
In terms of candidate surpluses, again, from preliminary information following the thirty-ninth general election, we are estimating some $11.7 million in surplus funds overall for candidates of the five parties that are in receipt of the allowance.
When we look at the foregone revenue and apply the limits in Bill C-2 on the 2005 fiscal returns of EDAs and the candidate returns from the thirty-ninth general election, we are seeing a loss, or foregone revenue, as I would call it, of some $10.7 million combined. I am not sure that you can do a straight mathematical calculation and say whether there is an issue or not. What we are seeing in terms of surpluses at the local level is significant in their amounts, and it must be taken into consideration when looking at the foregone revenue at the local level.
Regarding political parties and your question about the impact of Bill C-24, we have done an analysis of the 2004 year and general election on the political parties. We are seeing that they are collectively, on the whole, better off than they were pre-Bill C-24. We took the year 2000 that had a general election and the fiscal year the parties were operating, and we adjusted it to 2004 dollars, so their inflows from contributions and reimbursement of election expenses versus 2004 under Bill C-24 contributions, allowances, increased reimbursement of election expenses. When we do the calculations, overall, they are coming out ahead when you measure those things.
The impact of Bill C-2 on top of that still leaves them globally in a positive position.
Senator Milne: Have you done any assessment of the impact of this proposed $1,000 limit on the smaller political parties?
Ms. Vézina: Yes, we have. I have a note here for myself regarding that. For 2005, on total contributions of $1 million, the smaller parties would have foregone revenue of $160,000.
Senator Milne: That is what they have been telling us.
Ms. Vézina: That is 2005.
The Chairman: Before you go on, senators, could I ask if any of the data you have just given us is available on your website right now, or will it be?
Ms. Vézina: The base information is on the website. This analysis is not.
The Chairman: Will it be soon?
Mr. Kingsley: If the committee is interested, we could provide this type of analysis to the committee.
The Chairman: That would be very useful.
Mr. Kingsley: Obviously, there are suppositions. We have looked at the world as statically as we can, realizing that the world is not static. Your committee would at least have an appreciation of what the world would look like if it were static. We would also be more explicit with the suppositions because it is important for you to appreciate where we are coming from because they have a lot of impact on these things.
Senator Zimmer: This leads to a supplementary question. We heard from the previous witness, and you indicated the same thing, that 98 or 99 per cent of donations are under $200. That seems to be somewhat of a guide on the limits. The previous witness also said that we must be a little cautious of the rules that we bring in now because over the next five to 10 years things might change and the world is not static.
Having said that, there may come a point in the near future that that average donation surpasses the limits. If the individual limits, or the lower limits of the average, exceed the lower limit, there is a possibility we may look at this again, and then the logic might be to move the limits back up.
We must be a little careful about how low we make the limits. We are moving from $5,000 to $1,000 or $2,000. That is a 60 to 80 per cent reduction from Bill C-24. If we make such a dramatic reduction, is there not the possibility down the road that we might have to look at this situation again to perhaps consider increasing it? Is that a possibility in the near future?
Mr. Kingsley: There was a signified intent when Bill C-24 was passed to look at the situation several years down the road. This is what we were planning to do, but the several years have just recently rolled around and we are getting a brief appreciation. Whenever the laws on the financing of political parties, candidates' nominations, et cetera, are changed under the Canada Elections Act, after a reasonable time there should be a review no matter when that occurs.
The reasonable period of time would be several years because, as we are finding out as we analyze this, it is difficult to tell from just 12 months what is happening with a change as major as this. What is also happening now is that, because of a minority government situation, there are more elections than people were forecasting, and elections are expensive. We are still not seeing a major deleterious effect from this.
I agree with you that, should this proposed legislation pass, there would be a need to review it within several years, but I would see that as normal whenever laws affecting financing are passed. We want to ensure that we are maintaining the integrity of the electoral system through the laws that are passed dealing with financing.
Senator Zimmer: If we move too quickly on this and lower it too quickly, my fear is that it is always more difficult to increase than to reduce, given the perceptions of donations.
Another area is the date of implementation. We hope that later this fall this bill will be passed. The public will have to be educated as to the new proposed legislation. Some people will make their donations in the early part of the year. If the implementation date is too tight and the law is changed to a certain date, then rebates must be made, and donors must ensure that they are not over the limits. It becomes an administrative nightmare.
In your opinion, if this bill does come into effect in late fall, when would a probable and appropriate implementation date be?
Mr. Kingsley: As I indicated in my introductory remarks, we are preparing now a communications effort where we would hit newspapers and produce pamphlets. We would target political parties and their emanations, electoral district associations, the ones that are registered with us. We have on our computer the addresses of everyone who is involved. We would also target businesses and unions, as we did when Bill C-24 rolled around. We still have mailing lists for all the businesses to whom we wrote. We would send them the pamphlet. We would educate the Canadian public about this.
It would mean a quasi-instantaneous need to turn around. My job is to execute what Parliament wishes me to execute. I am here to tell you that I do not think it is impossible. I would tell you if I thought it were impossible.
Senator Baker: The witness has closed the door, I presume, on all questions relating to possible investigations or the initiation of proceedings against any matter that was brought up during the Gomery commission or certain matters that have occurred regarding finances at party conventions. I presume that was the reason for the witness's statement that he would not comment on any ongoing investigations. If that is correct, then would the witness say whether or not an investigation is ongoing into any of these matters?
Mr. Kingsley: We get requests from the media as well as to whether an investigation is going on in certain matters. We have refrained from commenting to the media, and to parliamentary committees thus far, whether an investigation or a review was taking place on a particular file. We have always refrained from doing this. I am willing to be guided by the wisdom of the committee, if they think that we should be starting to comment on individual cases, but this is the political sphere here and it is an area that is problematic for us in light of our wish to be open and straightforward about things, which is what Elections Canada attempts to do all the time.
In the particular area of investigations, I have always been exceedingly careful. I will say that there is no investigation concerning anything that happened relating to the Gomery inquiry. I will say that, because you raised that particular question.
Senator Baker: When I asked that question of the head of the federal prosecution service, he was shaking his head, ``No, no comment.''
This bill extends the time period to 10 years. Are you saying that there is not now an investigation, but that this will not preclude on investigation happening concerning the Gomery commission once this bill is passed?
Mr. Kingsley: The matters that were raised during the Gomery commission were under a year and a half time period at the time. There is no way we can go back.
Senator Baker: No.
Mr. Kingsley: I am misunderstanding you, then.
Senator Baker: Correct me if I am wrong. The old law was 18 months from the time that you became aware of the event. You were not making the decision; the commissioner did. Nevertheless, there was a seven-year period in which to institute proceedings. This bill gives you 10 years and a five-year window instead of 18 months.
Are you saying that, with the passage of this bill, you will not be able to, in your opinion, investigate a matter raised during the Gomery commission hearings?
Mr. Kingsley: That is what I am saying.
Senator Baker: I will turn to Mr. Corbett.
Who will decide whether a charge will be laid once this legislation is passed?
William H. Corbett, Commissioner of Canada Elections, Elections Canada: That would be the authority of the proposed director of public prosecutions. It is a simple answer.
Senator Baker: Let us become specific. The decision to lay the charge will be up to the DPP, who will be a Crown prosecutor; is that not correct, Mr. Corbett?
Mr. Corbett: That is correct.
Senator Baker: A Crown prosecutor will make the decision to lay the charges. After the charge is laid, who prosecutes the case, the Crown prosecutor, the DPP again?
Mr. Corbett: Counsel to the DPP will prosecute the case.
Senator Baker: Let me put to Mr. Corbett a question that is bothering me.
Mr. Corbett has a history as a prosecutor up North — in the Northwest Territories and the Yukon — where matters once upon a time were handled by police officers. They would investigate and prosecute a case.
Mr. Corbett: That was not in my time.
Senator Baker: I am a bit older than you, Mr. Corbett, and I can recall when prosecutions did take place in the province of Newfoundland and Labrador.
Mr. Corbett: That is correct.
Senator Baker: The police investigate and they prosecute. Along came the Charter of Rights and Freedoms and a basic tenet of Canadian law that said the investigation shall be in the hands of the police, the laying of the charge shall be in the hands of the police, but the prosecution must be carried out by a Crown prosecutor who takes a second look and who is not a part of the decision to lay the charge.
Mr. Corbett: That is basically it.
Senator Baker: You have just agreed with me that this bill will violate the Constitution in that the same people who decided to lay the charge will conduct the prosecution.
Mr. Corbett: The investigation is conducted by investigators. Under the proposed legislation, if I think the case is there, I refer it to the director of public prosecutions. I am not the director of public prosecutions and I am not a prosecutor. I am in charge of investigations now.
The director of public prosecutions looks at it and makes his decision: Is this a proper case for prosecution? Is the evidence good enough? Is it in the public interest? He can determine whether a case is not good enough and order further investigation. He or she can also determine if a case should go to compliance agreement and order that agreement to be worked out under legislation. The director and I are separate.
Senator Baker: Mr. Corbett, you just admitted a moment ago that the person who makes the decision on whether to lay charges is the DPP.
Mr. Corbett: Yes.
Senator Baker: Do you mean to tell me someone will make a decision to lay charges, and one week later think they may have made a mistake because the charges have been laid?
Mr. Corbett: That is the same business. Deciding to prosecute and carrying out the prosecution is the same business. The separate business is the investigation versus the prosecution.
Senator Baker: Mr. Corbett, let us say today you are the chief counsel of the criminal law section of the Department of Justice. Today, on a criminal matter, who swears the information? Who lays the charge? Is it the police or the Crown prosecutor?
Mr. Corbett: It is the police.
Senator Baker: That is right. Who decides whether to lay a charge if the police —
Mr. Corbett: If there is pre-charge screening, the prosecutor will advise the police by saying there is a case here, go forward as you have recommended and lay the charges.
Senator Baker: Mr. Corbett, every single commission of inquiry into wrongful convictions recently has pointed toward the fact that you cannot blur the line between the function of the police in deciding to lay a charge and the function of the Crown prosecutor in taking that second look and deciding whether to proceed with the prosecution or whether it will be an indictable or summary offence.
Justice Lamer released his report in June of this year, and that was one of the main things he attributed to wrongful convictions: The Crown had gotten involved in the decision to lay the charge and prosecute it, but missing was that second look.
Under this legislation, as you have admitted, the decision to lay the charge will be made by the DPP and the DPP will prosecute.
Mr. Corbett: That is right.
Senator Baker: All you will do is swear an information because you must do that if the DPP determines a charge is going to be laid.
Mr. Corbett: That is correct. That is not all I do. All I do is conduct an investigation. If I am content there is a proper case to go to the DPP, I write it up and make a recommendation to the DPP. That person may disagree with me, second-guess me, tell me I have it wrong, tell me to go back and start over again or tell me to engage something less onerous than prosecution, and I am under that regime to follow through.
What you are talking about are prosecutors who became whetted to the investigation while it was going on. Somewhere along the line, they assisted the police with wiretaps, lawful access matters —
Senator Baker: Making a decision to prosecute.
Mr. Corbett: — or advising them on how to run their investigation, and they became whetted to the investigative process. Can they make that independent decision later on? Justice Lamer says no.
Senator Baker: That is an excellent answer to my question. I am running out of time. I want to be very brief with the next couple of questions.
Mr. Corbett, you have prosecuted for years, and you are a man who looks at the words in the legislation. I am somewhat baffled with the clause in this bill that deals with you. Let me tell you why I am baffled.
Mr. Corbett: Which clause?
Senator Baker: At page 112 of the bill, proposed subsection 511(1) of the Canada Elections Act refers to the director of public prosecutions deciding whether to initiate an investigation. Proposed subsection 511(2) refers to the DPP deciding to initiate a prosecution, and subsection 512(1) states that no prosecution shall be instituted except by the DPP. Proposed subsection 517(7) refers to whether or not a prosecution will be initiated, and proposed subsection 517(8) states that the DPP may not institute such a proceeding. Finally, proposed subsection 518(2) refers to the DPP being prevented from instituting such a prosecution.
There are three occurrences of the word ``institute'' and three occurrences of the word ``initiate'' to presumably start an investigation. Is there a difference between the meaning of the words ``initiate'' and ``institute''?
Mr. Corbett: Practically speaking, I would say no.
Senator Baker: Why then do the people making this law keep mixing up the two words?
Mr. Corbett: That is a good question. You will have to ask them.
Senator Baker: My final question relates to a case that was adjudicated 10 months ago in Ontario. It was concerning the 2000 election.
Mr. Kingsley was the person who demanded ages ago that he should be allowed to have a 10-year window in order to bring a prosecution. Given the fact that memories fade and some of these prosecutions are summary conviction offences — you get off the bus and nudge someone, they come back 10 years later and charge you with assault and you do not even remember when it happened — there are obvious problems with that.
Another problem arose with this court adjudication 10 months ago in which section 473(2)(b) of the act was declared to be contrary to the Charter. It violated section 3 and was not saved by section 1. Therefore, it was of no force and effect in the year 2000. This happened five years later. There was no force and effect in the year 2000.
Mr. Kingsley has gotten what he asked for, that is, now you will have a court stating that 10 years ago during an election this was of no force and effect and it violates the Charter and, therefore, it is contrary to law for that particular election.
You see where I am going with this. It is not only unfair to the person being charged, but it is a nightmare administratively for the Canada Elections Act. Do you agree, Mr. Corbett?
Mr. Corbett: Ten years is a long time. In the event you were to reach back in time and bring a matter that old back to court, it would have to be a very significant matter indeed. The courts do not look kindly on one bringing minor matters forward so far down the road. You know that as well as I.
The broad time frame is there to deal with the most egregious possibility, not the summary matter or the brush on the arm.
Senator Baker: Finally, the provisions —
The Chairman: Before you go to your next question, Mr. Kingsley would like to respond.
Mr. Kingsley: The recommendation was made and accepted, obviously, thus far in order to help ensure the maintenance of the integrity of the financial provisions principally of the statute. That was what was in my mind through the experiences of the Gomery inquiry. Thank you.
Senator Baker: I want to discuss the sentencing provisions of the act in section 500. Your predecessor decided to prosecute certain people who would run for elections, but now it is going to be made by the DPP. Your predecessor had to make a decision whether to charge under section 500 with wilfully doing something and not wilfully doing it. These are for strict liability offences and it was decided to go summarily, so it was a prison sentence of one year that someone could get. I do not know what it is indictably; probably three or five years under the act. Five? Five years under the act.
My question to you is: That being that serious for knowledge of a strict liability offence, 10 years previous, do you think that that really should be there in the law?
Mr. Corbett: I am sorry. The one-year sentence should be there in the law or the 10-year reach back?
Senator Baker: The 10-year reach back, because what we are talking about in some cases is very onerous sentences that can be handed out under this legislation. I can your understand your point because the people can go and plead guilty and get rid of it. The last guy this happened to was running for the mayor of not Vancouver, like Senator Campbell, but for the mayoralty of Toronto when the charge was laid that something happened five years previous to it. The only thing that the news media got was, boy, you could be in jail for a year for this particular charge. He was found not guilty in the end because it was a violation of the Charter.
Do you think, with that onerous a sentence, that you should be able to reach back 10 years?
Mr. Corbett: The question is: Do you need to reach back 10 years often enough? No, you do not. I accept Parliament's law, Parliament has passed the law and it is not for me to criticize Parliament for doing what it has done for whatever the reasons are. That has been battled out already. From a practical point of view, the 10 years is, in almost all cases, not necessary. That is the reality of it. Some cases it might be, but not many.
[Translation]
Senator Fox: Under Bill C-4, corporations and unions had the right to make political contributions which were limited to $1,000, once a year, in a single riding throughout Canada. What were the contributions of corporations and unions during the last fiscal year? How much did the corporations contribute? How many corporations? How much did the unions contribute and how many unions were involved? If you have no answers today, perhaps you could send them to us later.
Mr. Kingsley: I know that we have those figures, and when I return with the other information you requested, I will give you that in detailed form.
Senator Fox: I would now like to come back to the matter of registration fees at political conventions. You clearly indicated in the document you presented that the cost of admission to a political convention is considered a contribution to a registered party. And I refer you to clause 46, amending subsection 405(1) of the Canada Elections Act, which clearly states that:
No individual shall make contributions that exceed:
(a) $1,000 in total in any calendar year to a particular registered party;
That is what the act says.
In light of what you said this morning, since the fees required to join a political party are considered to be contributions, these required registration fees would constitute a part of the $1,000 referred to in paragraph (a) of subsection 405(1).
Mr. Kingsley: Yes. And as I said, the final value of that contribution would depend on what can be deducted for what is received as a tangible benefit.
Senator Fox: It would, then, be false to claim that subsection 405(1), since it does not refer to the registration fees for political conventions, excludes them ipso facto from the total contribution to a registered political party by an individual in the course of a year?
Mr. Kingsley: You are correct, that would be erroneous.
Senator Fox: I'm raising the matter because some have said that it would not be included, whereas the truth is that such a contribution would be included.
What I also note is that the text refers to contributions during a calendar year. A calendar year runs from January 1 to December 31 of the same year. Take, for instance, the convention which will take place next December. Does this mean that if the act were proclaimed before that convention, registration fees required to take part in it would have an effect on the amount an individual could contribute during that calendar year?
Mr. Kingsley: You are correct, it would have an effect. And if the person had already contributed the maximum amount —
Senator Fox: If, for instance, an individual had already made a contribution of $5,000, he or she could not register for the convention without going beyond the amounts permitted during the calendar year, under paragraph 405(1)(a)?
Mr. Kingsley: In fact, if that person had already made a contribution of $5,400, the situation would be the same under the current act. If it were $4,000 or $400, he could go up to $995 I believe, minus the balance. But there would be an impact, without a doubt.
Senator Fox: I will give you another example: suppose the act were proclaimed and came into effect before the convention, someone who had made a contribution of $250 to the Liberal Party of Canada before the convention could not pay the $995 registration fee at the convention without breaking the law?
Mr. Kingsley: You are correct, after the act has been proclaimed. But if the payment were made before the convention and before the proclamation of the act, that would be another situation.
Senator Fox: But what about the calendar year?
Mr. Kingsley: If the new act covers a part of the year only, that part of the year would be taken into account.
In other words, if someone had made a $4,400 contribution, he could not make another contribution once the act was proclaimed. If he had contributed $500 up until that point, he could make another contribution of $500.
Senator Fox: But not $995.
Mr. Kingsley: No.
Senator Fox: I see.
Mr. Kingsley: However, the registration fee payment date is important as well.
Senator Fox: I understand the first part of your response, but I am less clear on the second half. Suppose I have made a personal donation of $500 to the Liberal Party of Canada, subsequently, I am chosen to be a delegate and on December 1, I arrive at the convention, get set to register and am asked to pay $995. If the act was proclaimed on November 15 —
Mr. Kingsley: Then you are too late.
Senator Fox: However, supposing the act comes into force on November 14, if I paid my registration fees before this date, I will not have a problem, even if this means I will have contributed more than $1,000 in the calendar year. Is that what you are telling me?
Mr. Kingsley: Correct. What counts is the date by which the registration fees were paid.
Senator Fox: Why is that? A person is allowed to contribute $1,000 in a calendar year and, if the act is proclaimed, the calendar year in question is 2005. This means that in 2005, I will have contributed more than $1,000 to that political party.
Mr. Kingsley: I think you mean 2006. Correct? The act takes effect from the moment it is proclaimed into law. It does not take effect retroactively. If a person has donated $500 up to the moment the act is proclaimed, that person can still contribute an additional $500. If he has already contributed $1,000 or more, an indexed amount, then he will not be able to donate any more money. If he has donated $5,4000 up until that time, he will not have broken any laws.
Senator Fox: Provided he has already made a contribution. If the act was proclaimed into law on November 15, as you suggest in your example, a delegate wishing to pay his registration fees on the day of the convention would be barred from doing so without running the risk of breaking the law.
[English]
Senator Zimmer: Mr. Kingsley, let me get this correct. If they pay their fees prior to the act coming into effect, it does not affect it. What if they pay their fees after the act comes in and they have already donated the maximum amount prior to the enactment?
Mr. Kingsley: They have broken the law.
Senator Zimmer: That is what I thought. Thank you.
Senator Milne: Mr. Kingsley, Senator Baker raised section 150 of this bill, which, in my opinion, effectively emasculates the position of Commissioner of Elections Canada. It has stripped away a great deal of Mr. Corbett's ability to enforce the Canada Elections Act.
Have you come across any research that makes such a change necessary?
Mr. Kingsley: My understanding of what is being done here is that the position of DPP is being created and that all prosecutorial functions relating to the federal government are being brought under one umbrella. That is the good that is being sought here. The particular impact on the Canada Elections Act is one whereby the role of the commissioner is affected because he or she used to have the authority to initiate prosecutions.
Senator Milne: It is diminished.
Mr. Kingsley: I consider it to still be quite strong because obviously there will be discussions entered into between the proposed DPP and the commissioner, so that what is brought forward by the commissioner will be accepted by the DPP and there will be an understanding of what is required to make the intentions of the commissioner stick with the DPP.
There is the add-on that there is a further judgment that will have to be met, and that is that of another official called the director of public prosecutions. I cannot get around that. That is at the heart of the matter. There is no doubt about it; there is that extra layer. We will do everything to make sure that the work of the commissioner is not hindered in his capacity to enforce the statute. It is a change, and you are right in that respect.
Senator Milne: It is an emasculating change, in my opinion. Mr. Kingsley, I think you have fudged my question a little bit.
Do you personally feel that such a change was necessary?
Mr. Kingsley: I do not personally think that such a change was necessary. What I am doing is complying, and doing so voluntarily, with the fact that a greater good is being sought overall in putting together the office of the DPP. Not all changes that occur to the statute are always to my liking, no matter what the government. This is clear. I have alluded to this under the access to information provision. I will not go back into the history; just today.
Senator Milne: Are you familiar with any problems that have been, in the past, encountered by the commissioner in enforcing the Canada Elections Act? Does this bill address any of those problems?
Mr. Kingsley: No. The bill does not address any particular matter that may have been problematic in the past for the commissioner. There will be obviously other opportunities that I will be seeking in further recommendations to Parliament, but the bill does not solve all problems.
Senator Milne: On page 3 of your brief, you talk about an amendment you have some concerns about; you say the public is going to have new rights of access to information. Besides this access that was protected in section 540, what other rights of access will Canadians have if this portion of Bill C-2 is implemented?
Mr. Kingsley: Effectively, they will have access to all of the records that Elections Canada has in its possession, everything that was done in the past for which we still have a record. That was not accessible in the past. In my view, that is one of the impacts of access to information legislation when there is retroactive effect. That is part of the statute that has retroactive effect.
Senator Milne: This part of the Canada Elections Act is being removed by Bill C-2.
Mr. Kingsley: The protection that was afforded, particularly to election documents, is effectively being removed. Hence, I recommend that the committee recommend strongly that that be reintroduced through an amendment to the Access to Information Act — which, in my view, would be a change in good standing.
Senator Milne: What is your opinion of implementing restrictions on third-party advertising during an election period?
Mr. Kingsley: The whole third-party regime is in the statute, will continue to prevail, has received total scrutiny by all the court levels of Canada, including the Supreme Court, and is found to be constitutional. Personally, I am very happy about all of that.
[Translation]
Senator Joyal: It is always a pleasure for us to welcome Mr. Kingsley to the Standing Senate Committee on Legal and Constitutional Affairs. My questions will focus on the constitutional aspect of the provisions affecting the Canada Elections Act. I would like to take up where my colleague Senator Baker left off. When you suggested that prosecution should be permitted up to ten years after the fact, did you assess the Charter implications of this recommendation and did you look at how Canadian courts, in particular the Supreme Court, have traditionally ruled in cases where legal proceedings were delayed?
Mr. Kingsley: When I made my recommendations, I took these matters into consideration as much as possible. However, it should be remembered that in terms of their constitutionality, all bills are given the stamp of approval by the Department of Justice. All I can say is that when I make my recommendations, I do so with an eye to the Constitution, even though I do not have at my disposal the same tools as the Department of Justice to carry out studies of a similar nature.
Senator Joyal: You rely on the Justice Department's final approval when it comes to requesting or recommending changes to the act?
Mr. Kingsley: Exactly. My recommendations are given due consideration, but not all are well received by the authorities.
Senator Joyal: I am willing to give you the benefit of the doubt, but some of your recommendations, when reviewed carefully in terms of their Charter implications, may be deemed to be in violation of the Charter. Correct?
Mr. Kingsley: That has never happened in my 16 years on the job.
Senator Joyal: The Supreme Court ruling in Figueroa whereby a political party need only nominate one candidate in order to obtain registered party status was not one of your recommendations, but rather a Justice Department recommendation. Is that correct?
Mr. Kingsley: When I was first appointed to this office, the rule was that a party must nominate 50 candidates. At no time did I recommend that this threshold be changed.
Senator Joyal: Therefore, practically speaking, it is possible that provisions introduced to amend the Canada Elections Act may be unconstitutional, and that you did not have an opportunity to gauge their impact, in practical terms, on the system?
Mr. Kingsley: That is possible. That is why Senator Baker mentioned a specific court decision where a legislative provision was deemed unconstitutional. Certain legislative provisions that I have not examined are regularly found to be unconstitutional.
Senator Joyal: Consider the case of small political parties. Perhaps you read the testimony given by some small political parties before this committee a week or so ago. Some remarked that they would be adversely affected by the provisions in Bill C-2 calling for a $1,000 limit on contributions.
Earlier, Ms. Vézina observed that after doing an impact analysis, she found that the negative effect for small political parties represented approximately $160,000. Therefore, there is some truth to the allegations made a few weeks ago by representatives of several small parties to the effect that this lower limit would adversely affect them. Add to this the fact the Bill C-24 bars them from access to public financing if they fail to win 2 per cent of the vote nationally, or 5 per cent locally. Consequently, their suggestion that the constitutionality of the act should be challenged has merit.
Mr. Kingsley: I would agree. It should also be remembered that they have already challenged the 2 per cent and 5 per cent thresholds before the courts. The Supreme Court has already revealed its fondness, so to speak, for small parties. We will have to wait and see how this all plays out.
If ever the courts were to rule in favour of small parties and do away with these thresholds, these parties will benefit from $200,000 per year, in view of the $1.75 they would receive from Elections Canada for each vote cast for their party in the last election. Therefore, they would receive an additional sum of money every year, not merely for an election campaign.
While we are on the subject of my recommendations, I would like to discuss my proposal to make available 60 minutes of free radio and television air time, during prime time, to be shared by all registered parties. This air time would have a market value of $500,000 for each party.
I know the government is considering this recommendation, since the House committee expressed its support for this proposal. I mention it at this time because clearly, the financial situation of all parties would be affected. A sum of $500,000 per election is a considerable amount of money.
Senator Joyal: Did you advise the Department of Justice that small political parties would be affected by the provision in Bill C-2 calling for a reduction in funding and that potentially this could be a factor in determining whether other provisions of the Canada Elections Act are constitutional or consistent with the Charter?
Mr. Kingsley: As you know, the Chief Electoral Officer reports to the government through the responsible minister.
Senator Joyal: In this case, the responsible minister is the President of the Treasury Board.
Mr. Kingsley: The responsible person is the Leader in the House. I regularly convey information of this nature to the government through the Leader in the House.
Senator Joyal: More specifically, did you point out to the Government Leader in the House that lowering the ceiling on contributions to small political parties from $5,000 to $1,000 could have an adverse effect on these parties — this would have been obvious from looking at the figures — and that consequently, this provision might affect the constitutionality of other provisions in the Canada Elections Act?
Mr. Kingsley: The information that I passed along was similar to the information that I am now sharing with the committee about the bill's impact, at this point in time, on political parties.
Senator Joyal: Therefore, you have not drawn any definite conclusions as to the constitutionality of the proposed amendments, based on what you know about the Elections Act and previous court rulings?
Mr. Kingsley: Not in this particular instance.
Senator Joyal: Have you come to any conclusions about the provision whereby the period within which prosecution may be instituted would be increased to ten years?
Mr. Kingsley: No, because I felt this provision was constitutional.
Senator Joyal: You believed it was constitutional?
Mr. Kingsley: I believed it was, I assumed it was and I hope that is in fact the case.
Senator Joyal: We will see how the courts rule on that question. I do not need to tell you that often, the bills referred to this committee have received the Justice Department's stamp of approval and we focus on the Charter implications of the provisions. Unfortunately, the courts' findings are occasionally different.
Consequently, it is our duty as committee members to ask ourselves why provisions are deemed to be constitutional.
You can always assume a bill is constitutional because it has been certified by the Department of Justice. However, that is not sufficient proof for us.
We must go a step further, beyond the practical implications, and consider whether the bill is consistent with the Charter, as my colleague Senator Baker did in considering the time extension or the negative impact of an amendment such as this on political parties.
Mr. Kingsley: I have always appreciated the valuable role you play on this committee, first under Senator Milne and now under Senator Oliver. I can appreciate that this is your role and I do not have a problem with that. That is why I am always prepared to answer your questions candidly.
[English]
Senator Campbell: I am a little confused by the contribution figures and the timing of contributions. If I were to give $1,000 to a political party and another $995 to attend the convention and then the bill were enacted, would I be eligible to make another $1,000 contribution?
Mr. Kingsley: No.
Senator Campbell: Why is that?
Mr. Kingsley: Because the new limit is $1,000.
Senator Campbell: The new limit starts when the bill is enacted. Is that correct?
Mr. Kingsley: However, you have already given in the calendar year.
Senator Campbell: I am missing something because we have talked about the fact that it cannot be retroactive and yet it would be retroactive to include that calendar year. Currently, I am allowed to give $5,000 in the calendar year. Is that correct?
Mr. Kingsley: Yes, you are allowed to give $5,000 plus $400 through indexation.
Senator Campbell: I am in compliance with the current rules but then a new law comes into force. Does not the new law begin from that date forward and on? I do not understand the idea of retroactivity. On the one hand, you tell me it is too bad that I gave already in this calendar year, while on the other you tell me that it is has no retroactivity. I have contributed in compliance with the existing rules but then new rules come into force. I do not understand why I cannot contribute an additional $1,000 in compliance with the new rules if the system is not retroactive.
Mr. Kingsley: I understand why there may be confusion, but I am giving you my best interpretation of the proposed legislation as I read it. I would suspect the difference is between ``retroactive'' and ``retrospective.'' The law will apply that for the year you must not have given more than $1,000 but that if you have already given when the law allows you to give $5,400 you can have given it to that point. Beyond that point, when the law becomes the law of the land, you cannot exceed, for the totality of the year, the $1,000. You cannot give additionally to the $5,450 or to the $4,400 that you might have already given. That is the way we interpret the proposed legislation; that is the way everyone who has participated has interpreted the statute.
Senator Campbell: It makes me weep that I did not go do law school.
Mr. Kingsley: I weep with you, sir. I never want to law school either.
Senator Milne: Suppose I have donated $4,400 to the Liberal Party of Canada this year. Assume Bill C-2 is passed and that I attend the convention and pay $995 to the Liberal Party of Canada because I am entitled to go as an ex- official delegate. Now you are telling me I cannot.
Mr. Kingsley: If you have already given the $5,400, no you cannot.
Senator Milne: What if I have given $4,400?
Mr. Kingsley: You can go if you make the payment before Bill C-2 becomes law, but you cannot if you make it after. It is not my fault. I am not taking it up. That is the way it is.
Senator Campbell: You cannot take the heat.
Mr. Kingsley: It will not be me.
Senator Milne: It is a Catch-99, or as Senator Stratton pointed out, it is a Catch-995.
Senator Stratton: Yes, plus the cost of your convention.
Senator Milne: That is a flaw in this bill, it seems to me, in that it should not come into effect until the beginning of the next calendar year.
Mr. Kingsley: That is obviously the kind of judgment this committee will be called upon to make.
Senator Day: First, on behalf of all of us here, I should like to congratulate Mr. Corbett on his appointment as Commissioner of Elections Canada, and congratulations to you, Mr. Kingsley, on going to an alumnus of Queen's University law school for your choice. I think that is an excellent choice. Mr. Corbett, we wanted to introduce you to Senator Baker early. We are pleased that you were able to experience that.
Mr. Corbett: It is my pleasure.
Senator Day: With respect to convention expenses, I should like clarification. Whether the particular political party at that convention made a profit after all expenses, has that anything to do with the interpretation of the section as to whether it should be included as a political expense?
Mr. Kingsley: As someone more famous once said: Profit has nothing to do with it.
Senator Day: Did you tell us what the sanctions might be for a political party that breached a regulation in regard to conventions?
Mr. Kingsley: I have not. I would have to look into that right now to see if we can answer before this session is finished; otherwise, we will have to come back to you on that.
Senator Day: I have a couple of other questions. Some of us might be interested in knowing if there are any sanctions and what they might possibly be.
Each of us has had an opportunity to promote and be very proud of the role of your department in the Canada Elections Act. The legislation is extremely important for Canada; it is important that you do — and you do — remain very independent. In other parts of the world, we hold this up as a model. Mr. Kingsley, you are an officer of Parliament. There is a resolution of Parliament that must pass — and that is all of Parliament, not just one political party that happens to be in power — before you are appointed and you can only be removed on resolution of Parliament, which gives you that important independence.
Mr. Kingsley: That is right.
Senator Day: Therefore, all of your appointees, including the commissioner, all work under that same non-partisan independence, which is extremely important in the public having confidence in the independence and the integrity of your office.
Let us jump to this proposed new position that will get involved in prosecutions, namely, the director of public prosecutions. Have you had an opportunity to see how this director will be appointed?
Mr. Kingsley: My understanding is that it is defined in the proposed act.
Senator Day: Did you know that Bill C-2, which has not been passed yet and has an opportunity to be amended, provides that the Attorney General, a minister of the government in power, will choose the list of people from whom this person will be chosen? This little committee that is set up chooses three from a list of 10. There is a very real potential for political interference in the position of the director of public prosecution. That person is now the ultimate person that determines whether there will be a prosecution and proceeds with that prosecution under this 1927- established act of independence of your department.
Do you have any discomfort with that?
Mr. Kingsley: Not beyond what I have already expressed to Senator Milne earlier today, sir.
Senator Day: I do not mind you expressing it twice.
Mr. Kingsley: With all the subtlety of which I am capable, I think I have just done that.
The Chairman: That is the lawyer in him. He wants it on the record.
Senator Day: I wanted to ask you for a clarification on a point because I was not certain about something. In your comments, you kindly suggested that the committee may wish to ensure that the protection under section 540 of the Canada Elections Act currently expressly prohibits access to election documents. I was not certain just what would be included in ``election documents.''
Mr. Kingsley: One that stands out is the ballot.
Senator Milne: They would have access to the ballot box?
Mr. Kingsley: Not while the election is going on, but afterwards. Should people want to look at the ballots several years after an election has taken place, they would then ask under the Access to Information Act. The way this is structured, unless the recommendations here are acted upon, they would gain access to those.
Senator Day: All those forms that are filled out or absentee ballots and agents, all of that information would become available unless we took your recommendation to continue this?
Mr. Kingsley: That is right. Right now, they are all accessible through the order of a judge when there is a contestation of an election. Those documents would be accessible, the way that this statute presently reads, without the recommendation being followed upon which I have made. That is my understanding of the way the bill is drafted.
Senator Day: We appreciate you bringing that to our attention. There is so much in here that might have been overlooked by us.
There are several provisions in the Canada Elections Act that allow for access. That statute has been around for a long time. I should like you to look at it again from the point of view of the integrity of this legislation to ensure impartiality and to ensure that it is neutral.
Was there a recommendation by you that the Access to Information Act should apply and there was not sufficient access that could come under the legislation, the Canada Elections Act?
Mr. Kingsley: At one time, because the whole thought of more access to information under the Canada Elections Act has been around for some years, we made a recommendation that was quite public, and I am quite happy to reiterate it. Copies can even be provided to the committee. We took the Canada Elections Act itself and recommended incorporating in the Canada Elections Act those sections that we think should be accessible under the Canada Elections Act beyond the ones that are there now. In other words, we were acting under the statute called the Canada Elections Act so that there would not be the involvement of someone else concerning access. That is what we recommended to the previous government, and for years we have recommended that. That was one way, and the other way is here. Again, this is for the greater good and access to information. With the recommendation I have made, I think we achieve something that is equitable under the process.
Senator Day: However, it could also be achieved the way you had recommended, namely, through you administering the Canada Elections Act. You are an officer or agent of Parliament administering the Canada Elections Act. If there is any need for further access, it could be achieved through amendments to the Canada Elections Act.
Mr. Kingsley: That is exactly what I thought. That is why I put it forward as a series of recommendations in the past.
Senator Day: Instead, now we have some disclosure under access provisions in the Canada Elections Act, and we have the Information Commissioner administering another Access to Information Act, and possible conflicts that arise are like the one you bring to our attention in section 540.
Mr. Kingsley: Right.
Senator Day: Are there any other amendments that you have not told us about this morning that you think might be beneficial?
The Chairman: Senator Day, do you mind if I interrupt? Two senators have supplementary questions on your previous question.
Senator Day: No, I do not mind.
Senator Milne: If I correctly understand this access to even the ballots, any Joe Blow off the street can demand access to the ballots so many years ago in a certain riding. That also means access to the military vote in that riding. It may be a riding that has a very small percentage of soldiers. It comes perilously close to identifying the actual voter.
Mr. Kingsley: It could have that impact. That is why I made the recommendation I did.
Senator Milne: This is a serious matter.
Senator Joyal: I shall put it in constitutional terms now. Section 3 of the Charter of Rights and Freedoms, which deals with democratic rights, recognized the secrecy of the vote. It is a citizen's right to vote secretly. If you adopt an amendment and create the unintended consequence of breaching the secrecy of the vote, this is a very major issue. Did you evaluate the impact to the secrecy of the vote of that change in your practice?
Mr. Kingsley: Obviously, we took into account the whole impact without going into all of the detailed ramifications, which is why I have made the recommendation that I did, senator. I cannot say how this particular impact was judged. I came to the conclusion that access to the ballots was not, unto itself, a good idea unless it were through a judge or through an examination that I ordered in order to find out if there were improvements that could be made to the statute. Another section allows me access as Chief Electoral Officer. We did not say, ``Does this have a particular constitutional impact?'' The construction that you are giving it obviously leads to even stronger support for the position that I have taken in light of amendments, including Schedule II, to the sections of the statute dealing with a number of documents that are called election documents.
Senator Joyal: In other words, it could have Charter implications in terms of the right of citizens to keep their vote a secret.
Mr. Kingsley: The short answer is yes. In terms of numbers of instances where this could occur, it is not that great, but we must be concerned about one person.
Senator Joyal: That is the Charter.
Mr. Kingsley: We must be concerned about every person. That is why, without going into all the details of every section, I have made the recommendation that I have.
Senator Stratton: I have a supplementary question. The Treasury Board officials say the current provisions of the Access to Information Act would prevent the release of ballots because it is personal information.
Senator Day: Do you have the section?
Senator Stratton: That is the response from Treasury Board officials.
Senator Day: Do you have the section?
Senator Stratton: I am simply saying under the Access to Information Act. I do not have a specific provision.
The Chairman: The Information Commissioner will be coming to this committee later.
Senator Day: Maybe we should hold that until we have something specific.
Senator Stratton: Before we jump off the bridge with this aspect, we need to do a little more investigation. My understanding is that it is already protected. I have now been given the section, and it is section 19 of the Access to Information Act. We need to pursue that a little further.
Mr. Kingsley: I should also indicate that that was not the basic foundation for my recommendation. It is access to electoral documents unto itself that is a concern to me, and that I am bringing forward. It is not related to whether the secrecy of the vote would be breached.
The Chairman: Thank you for that.
Senator Day: Ms. Davidson, we were to find out whether you have any information with relation to sanctions for breach for failing to declare expenses at conventions.
Diane R. Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel, Elections Canada: The responsibility to report would be on the shoulders of the chief agent, and the failure to report the contributions received, if there were some that were not reported, would carry a maximum penalty of $5,000 or five years imprisonment. That is the maximum penalty. Numerous provisions could be looked at in the statute, such as the contributor, if they did so wilfully, et cetera. I am focusing on the failure to report.
Senator Baker: I would simply remind the witness that, in recent cases, it is not just the official agent who was charged but also the candidate. In the case that I mentioned a few moments ago, there was an element of knowing that this had taken place — that is, being part of the transactions. It involves not only the person responsible for the money.
Senator Day: It involved being part of the conspiracy.
Senator Baker: Well, it is the person. These are pretty good provisions.
Senator Day: I have two other short questions, if I may.
First, have you calculated an average time for investigation and reporting on matters such as failure to declare certain expenses?
Mr. Kingsley: We have not calculated that at this time. I would have to retroactively look at the file to determine whether there is a standard time that can be arrived at. The commissioner and I have agreed that we will establish guidelines that will clearly identify that. I know that you are thinking of a particular case, but these guidelines will be established in the near future based on his experience and our agreement. At this stage, I am not capable of commenting any further on that. I do not have any information right now.
Senator Day: Mr. Kingsley, you will understand our urgency in looking to determine whether there should be amendments to this bill that we are studying right now. There appears to be a clear division in interpretation. If an amendment is required, now is the time to make it, that is, as we are going through the bill. That is why I am asking when, if there were an investigation taking place by you, we might expect a decision that would give us some guidance.
Mr. Kingsley: We see no need for an amendment to the statute.
Senator Day: We will be better able to judge that once we have your decision, sir. That is our job.
Mr. Kingsley: It may or it may not be relevant to the situation. It will depend on the factors. I do not want to go into further detail on that other than to say to the committee that the Chief Electoral Officer's office sees no need for amending the statute with respect to convention fees at this time.
Senator Day: You think it is quite clear, is that right?
Mr. Kingsley: Yes. I explained it directly in my notes here.
Senator Day: You did, yes.
This was very helpful with respect to your recommendation for an amendment to section 540 of the Canada Elections Act. Are there any other recommendations you would have for us that might have an impact on anything Bill C-2 touches on?
Mr. Kingsley: If there were, I would have brought them forward. If there were need for other changes, I would have brought them forward as well. Otherwise, I would not be doing my job to my satisfaction.
Senator Baker: I want to congratulate Mr. Kingsley for the excellent staff that he has and the addition of Mr. Corbett, who is an excellent addition to his staff. I want to ask one question of Mr. Corbett.
The proposed new law before us says that if the commissioner believes, on reasonable grounds, that an offence under this act has been committed, he may pass it over to the DPP. If the DPP decides to lay charges, it says that the commissioner ``shall'' then swear an information — which, as everybody knows, is an affidavit. The affidavit will begin as follows: ``I do solemnly swear that I have reasonable and probable grounds to believe....''
Is there any difference between ``believes on reasonable grounds'' and ``believes on reasonable and probable grounds,'' in Mr. Corbett's vast experience as a prosecutor?
Mr. Corbett: No, there is not any difference. If you look at old law, when they were developing it, they would use the English developing word and the Norman French word — for example, ``reasonable and probable grounds,'' ``to have and to hold,'' — all kinds of expressions in the law. It took a long time, but now in criminal law we only say ``reasonable grounds.''
Senator Baker: I guess that straightens it — excellent answer.
Senator Campbell: We still use ``to have and to hold.''
Mr. Corbett: Especially if you are getting paid by the word! ``Reasonable grounds'' by law means credibly based probability. You have the evidence and you have made an assessment that it is believable.
Senator Baker: The only reason I was asking the question was to have Mr. Corbett admit that he starts from the proposition of having reasonable grounds to lay a charge, and yet he has to go to the DPP, whose decision it will be whether to swear out an information. Is that not correct, Mr. Corbett?
Mr. Corbett: That is it.
Senator Zimmer: Mr. Kingsley, on a point of clarification, I asked a question, as did Senators Milne and Campbell, but I think I heard a different answer. My question is this: If an individual makes the maximum donation prior to the convention, that is, $5,400 for the year, and the act comes into effect, and then he or she goes to the convention under the new act — not the old act — with the additional $1,000 for the convention, is that person actually giving $6,400 for that year?
Mr. Kingsley: Yes, he is, sir.
Senator Zimmer: Then the two pieces of legislation will be interrelated; in other words, the proposed new act will not make null and void the old act, is that correct?
Mr. Kingsley: It does not make null and void the contribution that is made under the old act. It must be taken into account.
Senator Zimmer: For that year.
Mr. Kingsley: However, you cannot take it into account to the extent that retroactively you can say to an individual, ``You gave $5,400, the new limit is $1,000; therefore, you are guilty of an offence because the law has been changed.'' It cannot do that, but it carries forward the amounts that you contributed to that point. That is the continuity, as I see it, between the two laws, should this one pass and come into effect before December 31, 2006.
Senator Zimmer: If it comes into effect in the first part of the year, it does not affect it.
Mr. Kingsley: If it comes in effect perfectly on January 1, it does not.
Senator Stratton: I wish to pursue the issue of where we are going in the future. I am more concerned about your crystal ball predictions. I was in the Republic of Congo for their first election in over 40 years. The experience was amazing. There were 33 presidential candidates, and, in one riding, there were 250 candidates for a post in the House of Representatives, as it were. It was extraordinary to watch them go through the vote, understanding it was the first vote in over 40 years.
If you transpose that to Canada, should you have proportional representation in the future or the removal of a threshold, there would be a proliferation of small parties. In the Congo, where one constituency saw 250 candidates and where 33 candidates ran for president, you know that, over time, there will be a rationalization as the minor parties get together to achieve power, as they all would.
In Canada, if the threshold is removed, we were told by the smaller parties that testified before this committee — for example, the Communist Party of Canada, the Marxist-Leninist Party of Canada, the Green Party of Canada, and the Animal Alliance Environment Voters Party of Canada, among others — that there may be a likelihood of 15 parties, that we are likely to grow to that number. Yet, when we add the numbers up, we are already at five or six very small parties plus the major parties. That number is at eight or nine already.
My concern is that, in the future, if the removal of the threshold takes place, which is likely to happen, what happens to debates? What happens to equal time in the media? In your view, how could we possibly manage having that kind of situation and deal with it?
Mr. Kingsley: First, 15 parties are currently registered — and that has been the number for several years. The changes in the statute, as I testified before, did not bring about a proliferation of parties, despite the advantages that are attached to party status — perhaps because of some of the burdens that continue to exist on becoming a party.
For example, one factor that must be taken into account is the registration process, which requires 250 genuine signatures of electors. There is the obligation to report on a regular basis on financing to Elections Canada. There is the fact that the leader must provide an attestation to the Chief Electoral Officer about the constitution of the party and the requirement to be a real political party. There is the fact that there is a deregistration process that may be prosecuted in the courts through the commissioner, should there be indications to the Chief Electoral Officer that a party is no longer really a party.
There are fail-safes in the system that are meant to protect against this kind of thing. I will be so bold as to suggest, through our international experience, that the lack of political experience of other countries is very onerous to them as they try to move towards democracy. We do not have that here. We have the advantage of having been around as a democracy for a long time — since the inception of the country, as a matter of fact.
What we thought was going to be a situation that would create a proliferation of parties did not create it. I am optimistic that that would not result, should the courts decide to do something with the 2 per cent and the 5 per cent thresholds that exist right now that would allow them access to the $1.75 indexed per vote. The amounts of monies are not all that staggering, if we are talking about $200,000 shared by them on an annual basis. I cannot see that as becoming a strong inducement. If we saw anything fishy going on, obviously, we would look at it carefully. Despite the fact that the amounts are small, these are public monies.
The Chairman: Mr. Kingsley, we have come to the end of an interesting session on our study of Bill C-2. As the chairman, I do not usually get an opportunity to ask questions, but, in conclusion, I should like to ask just one.
The witness who preceded you today said, in response to questions from various senators, that he did not have the answer but suggested that we ask Mr. Kingsley and his executives. He left several of those questions open.
He had talked about how the treatment of loans that are made but not repaid within a reasonable period of time. What are your rules, practices and procedures with respect to that?
Mr. Kingsley: I stand to benefit from the light of my colleagues here, but my recollection is that a loan that is not repaid becomes a contribution. Therefore, if it exceeds the ceiling, when it is not repaid, the person will have made an illegal contribution and will be subject to prosecution.
Senator Joyal: What is the length of time?
Mr. Kingsley: There are exceptions to that — for example, a genuine attempt to repay, and so forth. However, a judgment has to be made.
Ms. Vézina: To add to what Mr. Kingsley has said, certain exceptions are in the act, and Ms. Davidson is looking them up right now. If you have a binding agreement to pay that sets out terms and conditions of the payment and it is a commercial transaction, in other words, it carries interest and it is a normal condition that would exist with any borrower in similar circumstances, then that loan, if it is being repaid in accordance with the agreement, would not be deemed to be a contribution. It would be the same as an unpaid claim or a bill from a supplier. If the terms are net 60 days and you follow that payment term, then that would not be a contribution.
There is a deeming provision that deems an unpaid claim or a loan to be a contribution if it is not repaid within 18 months of its being incurred.
Again, there are exceptions, such as the following: there is a binding agreement to pay; it is in dispute; it is in the courts; or, it is written off in accordance with a creditor's normal accounting policies. There is another condition, but I cannot recall it.
The Chairman: Mr. Kingsley, on behalf of our entire committee, thank you very much for being so forthcoming in response to the various questions put by our honourable senators. It has been very useful to us in our continuing study of Bill C-2.
Mr. Kingsley: Mr. Chairman, I wish to thank you and the members of the committee. It is always a pleasure to work before your committee.
The Chairman: Thank you.
The committee adjourned.