Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence, February 1, 2007
OTTAWA, Thursday, February 1, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, to amend the Canada Elections Act, met this day at 10:45 a.m. to give consideration to the bill.
Senator Lorna Milne (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: We are continuing our study of Bill C-16, to amend the Canada Elections Act. This is our third meeting on the bill. We have so far heard from the minister and government officials, and had a very informative meeting last night with Mr. Jean-Pierre Kingsley, at which he was able to announce his new position.
The purpose of this bill is straightforward. It amends the Canada Elections Act to bring in fixed election dates at the federal level in Canada. It provides that, subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following polling day for the last general election, with the first general election after the bill comes into force to be held on Monday, 19 October 2009.
Our next witness plays a central role in ensuring the proper functioning of the electoral system in British Columbia. Harry Neufeld took the oath of office as B.C.'s Chief Electoral Officer on November 7, 2002. He brings 20 years of experience in electoral management to the position of Chief Electoral Officer.
Prior to his appointment, Mr. Neufeld held senior level positions in three electoral management bodies: Elections B.C., the United Nations and Elections Canada.
In addition, he has worked as an electoral management consultant with the Canadian Royal Commission on Electoral Reform and with various international organizations and electoral agencies around the globe.
As required by law, he was recently appointed to the B.C. Electoral Boundaries Commission, which will deliver its final report on proposed changes to electoral boundaries in February 2008.
B.C. is the only jurisdiction in Canada to have gone through a fixed election cycle.
Harry Neufeld, Chief Electoral Officer, Elections BC: I am honoured to appear before you today to speak about fixed election dates. British Columbia, as you know, is one of three provinces and one territory that have enacted legislation to fix election dates, although B.C. is the first jurisdiction to administer an entire election cycle on that basis.
I would like to tell you about that experience and the key things we learned about the value of fixed dates, both administratively and from the perspective of fairness to our clients, including voters and political parties. I look forward to your questions following my opening remarks.
To provide context to the administration of elections in British Columbia, senators should be aware that we currently have 40 provincially registered political parties and our general elections are to fill 79 seats in the provincial legislature. Twenty-five political parties endorsed candidates in the 2005 election, with 412 candidates contesting the election, which included 28 independent or unaffiliated candidates.
British Columbia's Constitution Act requires that elections take place on the second Tuesday in May, in the fourth calendar year following general voting day for the most recently held general election. This is, of course, subject to the Lieutenant-Governor's prerogative to prorogue or dissolve the legislative assembly as and when the Lieutenant- Governor sees fit.
This is similar to Bill C-16 in that a four-year term is fixed, but the fixed date does not preclude an election happening sooner under extraordinary circumstances.
My office administered its first election under fixed election dates on May 17, 2005.
There was an expectation that, first, fixed election dates would ease the administration of elections and the fixed date would save the province money.
Second, a concern was expressed that as the Constitution Act was amended without changing the provisions of the Election Act regarding the campaign financing, the fixed dated would result in abuses of campaign spending rules.
I can advise you with confidence that the fixed date does indeed make election administration more efficient. We were better able to plan the event. The certainty of the fixed date meant we could rent office space earlier, identify and secure better voting places, refine our hiring practices and take the time to hire the best staff we could for district electoral offices and voting places.
We were also able to enhance and deliver a more comprehensive training program for our district electoral officers, who are the provincial equivalent of federal returning officers.
At every step of the administrative process, from updating and printing the myriad of forms and guides required to packing our warehouse and shipping materials in a timely manner, we were able to increase our efficiency.
We were also able to plan and stage a comprehensive, integrated advertising campaign to advise voters of the general voting day and the many options available to them in order to cast a ballot. That, combined with accessible, convenient voting places and well-trained officials, translated into a better experience for B.C. voters.
In British Columbia, as elsewhere in Canada and in the world, declining voter participation is a serious concern. There are many factors that affect voter participation, and I would not say definitively the fixed date itself increases voter turnout, but the certainty of a fixed election date allowed us to reach out and engage voters far more effectively.
However, significant cost savings anticipated by some did not materialize. Some of the highest costs in electoral administration, such as salaries for temporary employees and officials, remain unchanged whether or not there is a fixed election date. We were able to realize some savings, and in some areas substantially, such as advertising, where we could buy television and radio space well in advance, and we could negotiate much better rates with some suppliers. The lesson learned here is that fixed election dates do not necessarily save money, but they do result in greater efficiency of administration and, more importantly, better quality of service to voters.
I am aware that the senators of this committee have been discussing the issue of possible alignment of election dates as a number of jurisdictions have opted for October dates. There is a concern that dates between jurisdictions may ultimately overlap, causing confusion for voters and difficulty for election administrators vying for voting place locations, officials and so on. This is certainly a concern given the limited number of voting places and officials available.
Fortunately, for British Columbia, this is not as much of an issue as our general voting day is in May, not October. However, from an administrator's perspective, on balance, it is preferable to have the certainty of a date and to be able to strategize around overlap rather than maintain a perpetual state of readiness in a climate of uncertainty.
As I mentioned, there was also a concern over potential abuse of campaign spending rules. In British Columbia, parties are required under the Election Act to report their spending during the campaign period, within limits. Those limits and that period are defined in the act as starting on writ day. Any expense incurred outside the campaign period is not subject to the expense limits provided in the act, although it must ultimately be reported in the party's annual financial report. Some commentators, especially academics, had expected the campaign-period spending limits would be circumvented by a large expenditure being made prior to the issuing of the writs.
We have no evidence of this behaviour so far in British Columbia. Parties did spend a bit more during the 2005 election, but they also received more in terms of contributions.
As voters are less inclined to pay attention to campaign advertising far in advance of an election, such spending would likely not have been an effective use of political parties' funds. Parties did not spend at a higher rate before the election than they did in previous elections.
Senators should also be aware that fixed election dates will not change human behaviour. At the last election, almost 10 per cent of our 412 candidates waited until the very last day of nominations — in some cases, the closing minutes — to file their nomination papers, despite plenty of advance warning and a feature in our legislation called standing nominations, which allows candidacy to be formalized, partially, prior to the election writs being issued.
My role as Chief Electoral Officer is to see that democracy in British Columbia is served through the fair and impartial administration of our provincial electoral legislation. In British Columbia, we have learned that fixed-date elections result in more efficient electoral administration, which translates into significant benefits to all our clients and most importantly to voters, in terms of our being able to develop their awareness regarding their access to the vote.
The Deputy Chairman: Thank you Mr. Neufeld. Have there been any constitutional questions raised in British Columbia about the fixed election date?
Mr. Neufeld: The legislation was brought in as a result of an amendment to the Constitution Act. To my knowledge, there have been no challenges. There has been no controversy at all about the legal authority associated with that change. In general, there has been some discussion. There was talk at one point of potentially moving the date, but in the Speech from the Throne of September 12, 2005, the first one after the first fixed-date election, it was made clear that that date would be kept and that subsequent elections would be on the second Tuesday in May every four years.
The issue of a minority government has not been a situation that we have dealt with in British Columbia. In fact, the government that brought in this legislation had a very substantive majority of 77 seats out of a 79-seat house.
The Deputy Chairman: How do you see this working in a minority situation? Minority situations are probably more likely at the federal level where we have, so far, four viable parties.
Mr. Neufeld: That is an interesting question. We have more political parties registered in British Columbia than the rest of the country has as registered parties. However, it has not turned into a fragmentation of the vote.
Frankly, the fixed election date legislation as enacted in British Columbia, as proposed in Bill C-16, leaves you at the status quo. Elections can be called whenever they happen as a result of a confidence vote or some other situation where — in our case, the Lieutenant-Governor and in the federal case, the Governor General — agrees that an election is necessary.
Senator Jaffer: You mentioned that you do not have to be in a continuous state of preparation. It does not apply at the moment in B.C., but if there was a vote of no confidence, you may not be prepared.
Must you have continuous preparation? At this point, you probably do not need it because you have a large majority.
Mr. Neufeld: That is a question that weighs heavily on any Chief Electoral Officer's mind about how much public expenditure should be utilized to be ready. I have made a conscious decision. I do not have any district electoral officers appointed at the moment, and my office has the ability to appoint these people. They lose their appointment six months after an election.
There is a 46 to 33 split in the house, and there are only two parties represented in the B.C. legislature at the moment. That is a substantial majority. It is not an intelligent expenditure of public funds to have district electoral officers appointed and trained at this point.
We are proceeding through an electoral boundary redistribution. The districts are likely to change, so I will wait until our preliminary report is out — because I am on that commission, I can say ``our'' — in mid-August.
My staff will be working on appointments of district electoral officers based on those preliminary riding definitions this coming fall. The finalization will be next spring, when we will probably begin the formal appointments of each district electoral officer and deputy. The formal training will begin late next spring, and one year later, they will be running an election. The election will be held May 12, 2009.
If I was in a situation where that majority was much smaller, that would probably not be the case. I would probably have a full complement of district electoral officers and a full warehouse stocked with kits that are ready to go on short notice.
It is a judgment call that any Chief Electoral Officer in Canada is required to make in the absence of large majorities and fixed election dates.
Senator Jaffer: May 12 has been set; but if a religious or any kind of holiday fell on that date, would you have input into changing the date?
Mr. Neufeld: There is nothing in the legislation that speaks to that at all. The Interpretation Act would come into force if it was a holiday that was described in that legislation.
I presume, before that date was chosen, research was done to see whether that was likely to be a holiday of any kind — cultural, religious or otherwise.
To my knowledge, we have looked at five elections, and we know of no conflict.
Senator Jaffer: For clarification, we may be talking in different terms with regard to holiday. It may not be a statutory holiday but a religious holiday. Is that covered by your statute?
Mr. Neufeld: No. Frankly, in British Columbia we have a lot of options available to the public for voting on a day other than general voting day if there is a conflict: They can vote in the office of the district electoral officer the day the writ is issued right up until voting day; we have advanced voting Wednesday through Saturday in the week before the election; it is also possible to ask for a mail-in ballot.
The legislation that brought in fixed election dates in British Columbia was extremely brief, a couple of paragraphs. It basically only amended the Constitution Act. It did not look at amending the Election Act or any of the other legislation that may have been affected.
Senator Jaffer: In the legislation, because it is a fairly new process, have you set up a review of the fixed date? You have had one election on a fixed date. Is that right?
Mr. Neufeld: As it is part of the Constitution Act, I believe the government of the day could take it on itself to amend. The concept of fixed election dates in British Columbia is quite popular, and any government coming to power would be very cautious about changing or removing that feature.
A review is not built into the legislation. There was talk about a review leading up to the election and editorials were being written about possibilities of changing the date following the election, but this was dismissed with the throne speech statements that were made following the election.
Senator Joyal: My first question deals with the rate of participation of voters. In the last sentence of your brief, you mention that it ``translates into significant benefits to all our clients,'' which I understand, on an administrative basis, that when you know ahead of time, you can plan your renting, training and so forth better. I do not dispute that at all.
When you say there is a benefit of developing prior awareness regarding access to the vote, does that transfer into a higher participation because the voter is aware ahead of time that there will be an election in three months, six months or a year, and they manage to be available for that vote? Have you been able to measure that?
I know it is difficult to measure all the variants that might influence some voters to go in en masse rather than be lukewarm about the vote depending on the issues of the election and the platform. I know those are important factors that influence the vote. In terms of essentially being aware ahead of time, have you been able to measure that?
Mr. Neufeld: It is an important and interesting question. In and of itself, I do not know that having that fixed date is what turned around five elections of declining participation, but we bumped up the participation rate of the eligible electorate — not the registered, but the eligible electorate — 3 per cent between 2001 and 2005. It had been going down steadily since the 1980s. In 1983, 70 per cent of B.C. eligible voters had voted; in 2001, 55 per cent had voted. Every election was dropping. When I came into office in 2002, I was really concerned that participation would drop below 50 per cent like it had in Alberta. I do not know what it is about the 50 per cent mark that is a motivator for me. Maybe it is that I believe having a simple majority of at least the eligible population participate in an election is essential for the viability of our electoral democracy.
Despite having a lot of budget constraints — B.C. was going through downsizing and cost cutting, and my office was affected, as were all the other statutory offices — we undertook quite an aggressive campaign trying to reach out to voters who had not normally participated at the levels that other parts of society had. We had outreach workers, and we targeted some advertising. We did turn it around in terms of a trend. Through five elections, fewer and fewer numbers of voters participated as a percentage of the eligibles, but we got it to increase from 55 to 58 per cent. It is still not great.
Is the fixed election the reason? We cannot say that definitely, but we knew the date, other organizations that were particularly interested in getting the youth vote also knew the date, and they were able to organize and assist with getting young voters registered and trying to build interest in participation.
Senator Joyal: My thinking at the base of this question is the following: There is not a country in the world where there are more fixed election dates than the United States, at the Congress, at the Senate and the president's level. It is every two years for the Congress, six years for the Senate and four years for the president. There is not a democracy in the world where the level of participation is lower than the United States. It is less than 50 per cent, or very close to 50 per cent. When we analyze that 50 per cent, we realize that there are whole segments of the population that do not bother to vote. When we distribute that 50 per cent, we know where the voters are concentrated. I do not make a direct equation between the fact that there is a fixed election date and the level of participation.
There are points in your answer that I would be tempted to share. For instance, if there is an election in mid- October, as Bill C-16 proposes, the youth are in school or in universities, and they are a captive audience. If there is an election at the end of May or early June, most of them will already be gone. Registration becomes a problem because they move around and might not be registered at their parents' addresses. You know the problem better than I do, being a professional administering an election.
There are so many factors intervening that might condition the level of participation, such as the one you have pointed out in terms of advertising to the youth. If the school system does not educate the youth to participate in an election as their first civic duty as a mature citizen, if no one informs them that this is a responsibility they have to take seriously, it falls on the shoulders of the provincial electoral officer and federal officer to educate the new generation. There are so many factors, in my opinion, that it is difficult to make a direct relationship between the fixed election dates and level of participation. Participation of eligible voters in countries where they have had fixed election dates for so many years does not materialize in a higher level of participation.
Mr. Neufeld: It is a larger question than merely changing the rules around dates of elections and the administrative features. We did a study, following the election, to find out why people were not voting. It is on our website. We had B.C. Stats do a province-wide survey, and they established a good sample of non-voters and asked them a series of well-structured questions.
In general, half of the people who were not voting were doing so because they are disenchanted with the electoral process, politicians, political parties and the way politics works. There is not much we can do to reach those people by changing legislation on how elections are run or when they are held and their frequency.
Another quite large group — surprisingly large — were distracted. They meant to vote; they just did not get around to it. They were busy. Many things are going on in modern life. They felt guilty, but they admitted they did not vote.
A smaller percentage — if I remember correctly, about 10 per cent — thought in some way the system had failed them. They did not know if they were registered. They thought it would be a hassle when they went to vote if they were not registered. They did not know what the rules were. They did not know who the political candidates were or have enough information to make an intelligent decision, and they felt there should have been more information given to them. They did not know where to vote, or it was too far away and inconvenient. They were not willing to take the trouble to go that distance.
The largest group is those that are disenchanted, and something needs to be done. It is partly the responsibility of offices such as mine to do that. You are right that it is also a responsibility to start with some civic education processes that have real meaning and that make democratic participation clear to our youth coming through the school systems. Voting is only one small feature of democratic participation. I believe that is the root cause that needs to be given some real focus.
Senator Joyal: Another issue or question is the referendum in B.C. If I remember correctly, you have a Referendum Act that invites the government to consult the population before approving a change to the Canadian Constitution.
Mr. Neufeld: Yes. It is a very small piece of legislation. This is one of my favourite topics when I am bored at a cocktail party.
Senator Joyal: We can serve you something, if you need it.
Mr. Neufeld: It is called the Constitutional Amendment Approval Act, and I am impressed that you know that, senator. It is true that, in British Columbia, if there is to be a change in the Canadian Constitution, the legislature requires that there be a referendum on that constitutional question. We have never had one, and the only constitutional question was at that time there was an agreement that Elections Canada would run that referendum.
We have had referenda on other topics. We had a referendum with the last election, and we will have a referendum on the same topic with the next election on the issue of electoral reform. The citizens' assembly recommended a single, transferable vote system. The result of the referendum very narrowly missed meeting two thresholds, one being the super majority. The referendum needed to have 60 per cent of the popular vote in favour of moving to the new system and 60 per cent of the constituencies had to be majority in favour. The result was 97 per cent of the constituencies were majority in favour, but only 57.69 per cent of the popular vote was in favour of moving to the new system.
Senator Joyal: Therefore you bring the question back again next time?
Mr. Neufeld: The question this next time is coming back with the electoral boundaries known under the new system. The boundaries will be much larger because there are multi-member constituencies. This was a question during the debate leading up to the referendum.
The other matter is that the government has committed that ``yes'' and ``no'' groups will be funded with public monies to encourage participation. As well, politicians will be encouraged to actually engage in debate. Last time, there was sort of a quiet agreement that it was up to the voters, not the politicians. As a result, there was not much debate.
It is considered that this next time there will be not only an encouraged debate by providing public monies to the ``yes'' and ``no'' groups, but also an encouraged debate by making sure that the members of the house make their voices heard as well.
Senator Joyal: I do not want to be impolite as you are our guest, but being from Quebec, I understand the first ``no'' is not an answer; you will want to have another referendum, as we do in Quebec. We will have at least two, and there are people who feel we should have a third one on the issue. That is a side comment. I do not expect you to respond.
Mr. Neufeld: Thank you.
Senator Joyal: How do you manage the conflicting dates of referendum in relation to your fixed election date obligation under the B.C. act?
Mr. Neufeld: We found that it is incredibly cost-efficient to have a referendum in conjunction with an election; voters do not mind the second ballot. There is a high participation level compared to a stand-alone referendum.
Following the last referendum and the very close to dual-threshold result, the initial reaction of the government was that they were to have a referendum in conjunction with municipal elections. Municipal elections are held, I believe, the second Saturday of November every three years in British Columbia. The idea was that the referendum on electoral reform would be held in conjunction with the municipal election.
My office ultimately convinced the government that would not be a wise investment. It would have cost more than a stand-alone referendum simply because the rules are different for voting and voter qualifications, the boundaries are all different between the municipalities and the electoral districts, and there would have been some real competition for election officials and voting places. We would have had to set up basically two systems and two events in tandem. Therefore, a decision was made to delay the referendum until our next election.
Before that, the idea was that the voters would decide and whichever system was the result of that referendum was the one that would be used the following May. I can say that I am greatly relieved that is not the case because I would have had to get everything ready for an election under two different electoral systems, which would have been quite challenging.
If there is a conflict with a referendum and an election, the tendency will be — in British Columbia, at least — to put them together at the same time. There is such huge cost savings associated with this method. A stand-alone referendum in British Columbia was estimated to cost $25 million; adding it to the election is likely to cost less than $2 million.
Senator Joyal: That is significant. Do you have the same power as the chief electoral officer at the federal level in that you have the ability to recommend an election be postponed if there are circumstances that would prevent the participation of voters, such as a natural disaster, which would be beyond the normal circumstances of a vote?
Mr. Neufeld: Yes. There is a section in the B.C. Election Act that allows me to make an order for extraordinary circumstances that change administrative provisions.
Is has not happened since this legislation was brought in, where a natural disaster for example, caused a delay in voting across the province. However, in by-elections, I believe there was a delay because there were weather issues. That is anticipated in the Election Act.
Senator Joyal: However, you have not thus far utilized that provision?
Mr. Neufeld: I personally have not.
Senator Di Nino: You are our resident expert in Canada on fixed-date elections. It is nice to have you here to talk to us.
I want to go back to the question raised by Senator Joyal with respect to voter participation.
The issue has been raised, and will continue to be raised, because it is one of those expected benefits. You suggested that there has been a 3 per cent increase in voter turnout from the previous election. You also, I believe, informed us that for a number of previous elections, voter turnout had gone down.
I was struck by a comment made by your colleague, the Deputy Chief Electoral Officer, Linda Johnson, during her participation at committee in the other place. I wanted to see if you would have any words to add to this. I quote:
The increase in participation that we saw was primarily of youth, which went up somewhat, and we were very pleased about that. . . .
It certainly seems to me that, first of all, a 3 per cent increase from the previous election is a good increase. I was also very encouraged by those comments by your colleague, and I wondered if you had any further explanation or comments as to the specific reasons youth became more active in the last election.
Mr. Neufeld: We measured participation by age groups for the 2001 election and then again for the 2005 election. Of eligible voters, about 25 per cent of youth between the ages of 18 and 24 voted in 2001 and 35.27 per cent voted in 2005. I attribute this partly to my office's efforts, partly to media efforts and partly to organizations such as Rock the Vote that got very active. They tried to encourage registration.
We tried to reach out to this demographic, dealing particularly with the issue that Senator Joyal raised, which is students leaving post-secondary institutions in the spring. That is not where they are voting, but it does not mean they do not have the franchise. It simply means they might be voting in a different district that they now call home, or they are returning to the place they lived before they went to school.
We introduced online voter registration — we are the first jurisdiction in Canada, as far as I know — where full registration can be done online via our website. It requires, though, and we did this by regulation, that two secrets are shared with my office. One is a date of birth and the second is either the last six digits of a social insurance number or a drivers' licence number. If that is not acceptable, then registration must take place by some other method. This allows us to deal with duplicates. It allows us to deal with people who move or the same people who register twice, so we only have them on our list once at their most recent address. It removes the possibility of extensive fraud. We spent a lot of time with our privacy commissioner dealing with this. We do not make those two shared secrets publicly available, and we protect them very carefully in our systems, but it is an important feature that we have used.
I feel the combination of all those factors really helped. We know that, statistically, if voters are registered, they are far more likely to vote. The trick, though, is making sure that their registration is the current address at which they live, not at the address where they were six months ago or six years ago. We send them mail, saying, voting day is this day, your assigned voting location is this address, and if you cannot vote that day, these are your options with advance voting, early voting, mail-in voting and so on. Once they get that postcard addressed to the individual, the chances of them voting go way, way up. That is where we had a lot of success.
Now, 35 per cent of the eligible youth voting is still not something that I believe is a point of pride in terms of a very important demographic participating in elections, but it is an improvement.
Senator Di Nino: I certainly feel, and I am sure all my colleagues agree, that you should be applauded. You have gone from 25 per cent to 35 per cent, and that is a significant increase. I think that is great. I would imagine that that is part of the comment that you made when you referred to more efficient electoral administration, which the fixed-date elections allows you to deliver and which is one of those benefits that you talked about. You should be very proud of what you have done. That is great idea, and I have marked it down for our own use in the future.
In the process of creating the legislation, were all the political parties consulted through this kind of opportunity or others?
Mr. Neufeld: I do not have all the details, but I can tell you what I do know. This was a political promise that was made in the election campaign of 2001, and the party that made the promise formed government and introduced the legislation as one of its very early pieces of legislation. I am sure that the deliberations that did occur happened only in the House. I do not think there were any committee consultations. As far as I know, my office — and this was before I took office — was not consulted. It was a political promise that was made real as a priority with a new government.
Senator Di Nino: To your knowledge, were all political parties favourably disposed? Were they opposed? Was there any serious opposition, or did they generally all agree with this?
Mr. Neufeld: To my recollection, there was no opposition in the public, in the media or in the House to the introduction.
Senator Di Nino: Thanks for that. One of the issues that has been raised deals with the authority of the Chief Electoral Officer to recommend the moving of a fixed date in cases where he or she felt that date would not be suitable for that purpose. There have been questions raised as to a sensitivity associated with that, and also the latitude. Proposed section 56.2(1) of Bill C-16 states:
If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of it being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day in accordance with subsection (4) and shall recommend to the Governor in Council that polling day be that other day.
In your opinion, would that give you, if you were that person, sufficient latitude and leeway to be able to deal with those instances where you felt it was of importance, in your case, provincially, and, in the case of the Chief Electoral Officer of Canada, federally, to be able to recommend?
Is that worded in such a way that you would be able to, with confidence, go to the Governor-in-Council and suggest a change in date?
Mr. Neufeld: I did a little research in looking at this question because I anticipated it being asked based on the testimony I have read since Monday morning when I was advised I was wanted.
Senator Di Nino: When you were asked.
Mr. Neufeld: October is getting crowded for elections on a fixed date basis in Canada. Federally, you are proposing that it is the third Monday in October. Northwest Territories has made it the first Monday in October. Newfoundland and Labrador has the second Tuesday in October. In Ontario, it is the first Thursday in October, and thankfully in British Columbia it is the second Tuesday in May. I understand that a number of other jurisdictions are now looking at introducing fixed election dates, and I think they may need to look at the spring or some other time in the fall if it is to be a fall election.
I remember distinctly early in my career, I was involved in a mid-Vancouver Island electoral district where we were running a by-election; there was a federal election on, and also a municipal election on. The voters had an easier time than the election administrators. The voters knew who they were voting for, and they sorted it out just fine. Everyone was not voting on the same day. They were voting in different parts of the same month. Election administrators were going a little crazy, though, trying to find officials and train them on different rules than the ones on which they were just trained. Most of the election officials thought it was great because there was a large cadre of election workers that liked earning money as a result of an election. Therefore, having three elections consecutively was not all that bad as far as they were concerned. However, the people trying to find voting places, furniture, office space and so on had some real difficulties.
Personally, I feel that the legislation is something with which I could live. Basically, as I understand it, polling day could move to the next day if there was a conflict with a religious or cultural holiday or some significant event; or it could be moved to one week hence, and that is known months in advance. If an election gets called in another jurisdiction and is in conflict with a fixed-date election, it is the jurisdiction that does not have fixed-date elections that has the problem. It will not be the jurisdiction with fixed dates, because they will have matters in place to be ready.
I see the contention about the possibility of overlapping elections in October, but the legislation provides sufficient flexibility to make it work as proposed. Quite frankly, election administrators will work through this in the event that we have elections that are overlapping in time frames.
Senator Stratton: The basis for fixed election dates, as I understand it, was a political issue. It was seen to take or remove the opportunity for a premier to pick a more opportune time to call an election. The purpose was strictly to rebuild credibility and confidence in the electorate, that by having a fixed election date there would be no sense of gerrymandering the election by buying a premier. Is that your view?
Mr. Neufeld: I believe that is an accurate statement.
Senator Stratton: That is a basic truth that resounds across the country. Fixed-date elections are but a first step in electoral reform. That is the sense I get. Once done, it could potentially lead, or will lead, hopefully, because I am an advocate of it, to a proportional representation of the system. Is that the sense you get in British Columbia? Would that logically be the next step to reinforce the idea of rebuilding credibility with the electorate?
Mr. Neufeld: I feel it is a stretch to say that fixed-date elections are a precursor to electoral reform of a more fundamental nature, which is, translating votes into the seats. I do not believe it precludes it.
In British Columbia, the other big promise was the Citizens' Assembly on Electoral Reform. Those were the two planks of electoral reform that were joined together. There was no connection, however, in the public's mind between the two. It is an interesting theory I have not heard before.
Senator Stratton: It is interesting that the two were there together. There was not one separate and distinct and then following that, another one later.
Mr. Neufeld: Right.
Senator Bryden: Does your Elections Act still provide for a term not exceeding five years? I should not put words in your mouth either or in your act as I have not seen the act.
Under our Constitution Act, the term of a Parliament must get elected every so often and be in place for a term not exceeding five years. Is that the situation in B.C.?
Mr. Neufeld: The Canadian Constitution prevails. There is no constitution other than the Constitution Act provincially, and it can be changed with a simple act of the legislature. It is in the Constitution Act that elections are to be held every four years, but as with Bill C-16, this does not preclude the Lieutenant-Governor dissolving the legislature under her powers earlier than that. I suppose the Canadian Constitution would prevail if there were extraordinary circumstances that required a legislature to sit longer than four years, but the Constitution Act does not talk at all about the five years. I could read it to you.
Senator Bryden: Sorry, just so we are talking about the same thing, before you had the four years.
Mr. Neufeld: All it stated was how elections got called. Now it states elections are called on this regular basis including issues around the writ and so on.
Senator Bryden: Does it only say this is how elections get called? What did it say before?
Mr. Neufeld: It outlined the procedures by which the Lieutenant-Governor would instruct the Chief Electoral Officer to issue writs and there was no talk about duration.
Senator Bryden: Therefore, you could have had a legislature that would have lasted ten years?
Mr. Neufeld: No, because that would have been in contravention to the Canadian Constitution. The Constitution Act is subservient to the Constitution of Canada.
Senator Bryden: There is a question that has been raised by this committee as to whether it requires a constitutional amendment in order to change the term to four years.
Mr. Neufeld: I am not the authority on that.
Senator Bryden: I thought maybe you had a different fallback position, but it really is the Constitution of Canada that would ultimately control the situation.
Mr. Neufeld: As I understand it.
Senator Bryden: You said that the last three legislatures had gone their distance, five years, and the reason they had to stop there was because of the Constitution of Canada.
Mr. Neufeld: Exactly. Since British Columbia joined Confederation, the average is three years and eight months between elections.
Senator Bryden: This is just a comment. Some of us have a position that by setting four years as a period of time, setting a definite date, the maximum period of time has been changed. To do it properly, the Government of Canada may have to do it by way of constitutional amendment.
Another issue is the ability of the government to call an election before four years. We tend to regard it as the government trying to engineer a situation of its own defeat, to provoke a situation where everyone demands an election. There are other instances, though, where governments have had a unique opportunity to take action that a good majority of people would like and, when elected, the government did not have a mandate to take that action.
As an example, if a government needed a mandate, not to satisfy a large majority that they could control themselves, but in order to satisfy the public that they were indeed acting under the public mandate, how would a government deal with that in the third year of its mandate?
Mr. Neufeld: I suspect that members of this committee are far more experienced than I with the issue of electoral politics and the decisions that get made. I can tell you that in British Columbia the concept of the government going earlier than the fixed date that was set — there was speculation at a certain point that that was necessary, that was possible, that was advantageous, all the things that you can imagine that happened politically — would be, publicly, not acceptable. One does not set the date and then willy-nilly change ones mind and call an election. There would be a political price to pay, I believe, but I am not an authority. I cannot claim to be someone who could really tell you all the details of what is possible. I can only tell you from an administrator's perspective that once a date is set in legislation, I believe there is an obligation to stick with that date.
Senator Bryden: To follow up on that, not long ago there was a decision by the Mulroney government to enter into a free trade agreement, and it was clear that they did not have a mandate from the public to do that. As a matter of fact, the mandate they ran on was the reverse of that. There was an opportunity. That government had a significant majority and they would have been able to implement that agreement even though the public had not given them a mandate when they were elected to enter into such a major deal. This house created such a fuss that, although it was not necessarily our finest hour, we forced the government to go back to the people. The government won a big majority and went ahead with their plan.
In British Columbia, there is no other house that can stop the legislation. Has it been contemplated that in such a situation the premier would have the right to go to the Lieutenant-Governor to ask for an election because of a great opportunity for which they did not have a mandate?
Mr. Neufeld: I would say that the premier, in a case such as you outlined, would discuss section 23(1) of the Constitution Act with the Lieutenant-Governor, which states:
The Lieutenant Governor may, by proclamation in Her Majesty's name, prorogue or dissolve the Legislative Assembly when the Lieutenant Governor sees fit.
That is still a possibility. There may be an issue of such public importance that the government felt it needed to get a mandate from the people to pursue their solution for it. There is nothing in the British Columbia legislation that precludes that, and I do not believe it is precluded in Bill C-16.
Senator Fraser: My question is further to Senator Joyal's question about turnout and his observation that in the United States, where most elections are on fixed dates, they do not usually have good turnout rates.
As you noted, there are many variables. I am sure that your general knowledge of electoral systems is much greater than mine. I know that the different states all run their own elections, as do our provinces, so I know that it is not uniform, but do they generally make the kind of effort that we make at the federal level and that is made at the provincial level to get in touch with potential voters, to encourage them, to make it easy for them to get on the list and to make it easy for them to know what to do? My impression is that they do not do as much of that as we do. Is that an accurate perception?
Mr. Neufeld: I would say that is generally true. There is a philosophical difference in approach to voter registration. In the United States it is very much up to individuals to get themselves registered. In Canada, the general thinking is that it is up to the state to get people registered, that there is an obligation to reach out and provide highly accessible means for registration and voting. That is less of a philosophical underpinning in U.S. election administration.
The two systems are very different and there are many issues involved in participation levels being lower in the U.S. than in Canada. However, we are headed in their direction.
Senator Fraser: I am not trying to pin everything on one variable, but it seems to me that that would be a contributing element to differential turnout rates.
Mr. Neufeld: Absolutely.
The Deputy Chairman: Does British Columbia have any restrictions on advertising by the provincial government before or during an election writ period?
Mr. Neufeld: There is no legal restriction, but leading up to the 2005 fixed election date the government instituted a voluntary restriction with only certain types of government advertising permitted, that being advertising for health issues, job postings and matters that were necessary for continued administration and public safety.
That voluntary restriction was in place 90 days in advance of the writs being issued. That was generally very well respected, both by government offices and the media, and it received good public endorsement.
The Deputy Chairman: I gather that you would support what Mr. Kingsley told us last night. He said that Treasury Board policies impose a ban on certain types of government advertising during the writ period, and he suggested that it be extended by four weeks in advance of the writ period.
Mr. Neufeld: If British Columbia is an example, perhaps it could be even longer.
The Deputy Chairman: What about the possibility of a government using its access to the public purse to begin campaigning before the issuance of the writ because they know when the next election will be? There is some fear that this would disadvantage opposition parties. It would greatly disadvantage small parties. What is your feeling on that?
Mr. Neufeld: As I mentioned in my opening remarks, this was very much a concern in British Columbia. We were keen to look at whether this was really an issue, and we did not find that it was. That does not mean that it will not be an issue in the future. It may be something that should be flagged for review if there is not a desire to introduce legislation immediately.
I understand the concern. In B.C., with one fixed election date having come and gone, it did not turn into anything substantive. Election spending by all the parties, including the large ones, was no greater proportionately in the 2005 election than it was in the previous two elections.
Senator Jaffer: With regard to voter turnout, as you mentioned, there was an additional factor of a plebiscite on the single transferable vote for which a certain level of voting was needed. Do you think that was a factor in the increase last time?
Mr. Neufeld: Well I hope so. I do not feel it really had much of an influence. This was unique in that it was the first time it was possible for people to vote only in the referendum and not in the election. There were some people wanting to have the ability to decline a ballot formally for a long time. About 60,000 people did not vote in the referendum but did vote in the election. There are higher numbers overall for the election compared to the referendum. It was out of about 1.75 million votes cast.
The Deputy Chairman: Thank you very much, Mr. Neufeld, for coming so far on such short notice and giving us a good presentation.
We have before us Professor Henry Milner, who is Research Fellow at the Université de Montréal and the Institute for Research in Public Policy, IRRP. Mr. Milner is also a Visiting Professor at Umeå University in Sweden. In 2004-05 he held the Chair in Canadian Studies at the Sorbonne. In 2005-06 he was Canada-U.S. Fulbright Chair at SUNY Plattsburgh. He has been a visiting professor at universities in Finland, Australia and New Zealand.
Recent books of Mr. Milner include: Civic Literacy: How informed Citizens Make Democracy Work, 2002; Social Democracy and Rational Choice: The Scandinavian Experience and Beyond, 1994; and Sweden: Social Democracy in Practice, 1989. He has edited two books on electoral reform: Making Every Vote Count: Reappraising Canada's Electoral System, 1999; and Steps toward Making Every Vote Count: Electoral System Reform in Canada and its Provinces, 2004. He is the co-publisher of Inroads, the Canadian journal of opinion and policy.
Henry Milner, Research Fellow, Canada Research Chair in Electoral Studies, Department of Political Science, University of Montreal, as an individual: Thank you very much. I am looking forward to a discussion. I looked at the minutes of your questions that you had for the minister and I am convinced that you will have some interesting points to make.
It should come as no surprise to you that I am in favour of the idea of fixed election dates. In fact, I would argue that the particular version of this bill is unnecessarily cautious, but it is certainly a step in the right direction.
I am not a constitutionalist and I am not a lawyer, so I hope that we cannot spend too much time on those aspects, which I know are of interest to you. I want to stress why moving toward fixed election dates is an improvement in our democratic institutions.
Some of you may be familiar with the fact that I did publish with four IRPP, about a year ago now, a paper on fixed election dates, which compares what is happening in Canada and its provinces with other countries. I am a comparative researcher, as you can see. I have taught in many places and done research in many places. That is my way of looking at things.
The main point, which is rather obvious but not well-known even among political scientists, is that fixed election dates are in fact normal even in parliamentary countries.
We tend to think that fixed-date election were synonymous with presidential or mixed systems such as in the United States and that parliamentary systems by their nature needed to allow discretion to governments to call elections when they saw fit. It turns out that is really not the case. Many parliamentary systems operate with fixed election dates and operate very well. Even British Westminster parliamentary systems, in certain Australian provinces, now in certain Canadian provinces, in the new assemblies in Scotland and Wales, operate extremely well with fixed election dates, and even with multi-party systems where you do not have majority governments; for example, in Scotland, in the Scottish assembly.
As you may know from my writings, I would see other democratic reforms, such as moving toward a more proportional electoral system compatible with fixed election dates. If we had the time I could talk about that, but obviously we are talking about fixed election dates in the context of the current electoral system, which is not a proportional one.
My perspective is from the point of view of the voter, of the elector. It may seem a rather simple point to make, but it is useful to make among people who spend their time inside the walls of Parliament that elections are really for people, for voters, for citizens and only secondarily for politicians. Politicians get to make the decisions and act between elections, but the actual election activity, the real focus should be on what helps citizens in their activity as voters and which kind of dating of an election — the way an election is timed — is better for citizens.
That is the crucial point. It is often missed in the discussions where one thinks of the strategy of governments and what should be done in this case or that case and so on. We can deal with those technical points, but we have to keep in mind which is better for citizens.
If you ask that question it seems to me the answer is obvious. If you are a citizen you would like to know when the next election will take place. It is as simple as that. People would like to know when they will be voting. It helps the people who give the citizens information, such as the journalist. Since I am very interested in youth political participation, I feel it helps the civics professors very much when they can organize activities, speakers and events around upcoming elections and they know when they will take place. Also, people in the various groups involved in these simulations where we have young people in high schools voting at the same time as elections. It is much harder to plan if they do not know when the election will be held.
Almost in every possible way, if you know when the next election day will be, it will facilitate citizens and those trying to help citizens participate politically. It also, I argue, helps in terms of recruiting candidates. I would guess it is probably especially true of women. If one has to combine choosing to be a candidate and the kinds of decisions that it will have on ones lifestyle, it seems to me when a party looks for a candidate, it would be better to say when the election will take place, rather than to say it could take place any time between now and five years from the last election. It is much easier to organize ones life in such a way that at that point one may be willing and able to be a candidate.
Therefore, people can be recruited more easily. Elections can also be timed to suit particular groups. A date can be picked that is better for students, better for snowbirds and so on; all of these are small marginal advantages, but added together the argument is rather strong from the point of view of democracy, from the point of view of citizen participation.
In terms of the problems, the only one that I can see that goes beyond the sort of technical governmental issues — and obviously we will talk about those in the question period — is the question of whether we will then have too long an election campaign. Are politicians, knowing then that there is an election, say, October of next year, already starting to plan for it now?
I would say it is largely an empirical question. In the countries I have studied, that is not the case. Of course it happens in the U.S., as we know. They have started their presidential campaign effectively now, almost two years before, but their whole set of institutions is completely different, including primaries. As far as I know — I do not live in Ontario, but most of you do — the Ontario election campaign has not begun even though there is an election that will take place in early October.
Perhaps I stand to be corrected. I read The Globe and Mail every day, but other than that I am not that versed in Ontario politics. However, I do not have the impression that the situation is different in Ontario today than it would be if instead of the next election being slated for whatever day in October that it is slated for, that point would be the fourth year of the term and people would be speculating if there will be an election in the spring, the fall or the following spring. I stand to be corrected, but there is no more pre-election campaign activity taking place in Ontario at this point than there would be under the old system.
I was not here for Mr. Neufeld's presentation. I do not know if you asked him that question in relation to the last election in British Columbia, which took place under fixed election dates, whether the campaign started earlier than it would have otherwise.
My impression from the countries I have studied is that it is not the case, but it is hard to test because we do not know what it would have been like if it was not a fixed election date.
In Sweden, where I spend a lot of time, as was mentioned, the elections are in mid-September. The election campaign basically begins when people return from summer holidays in August. It is a simple thing; it is a tradition; it is what I call a political season and people are used to that. That is when it happens. Certain events take place, party events and so on. My guess is you can have something similar in Canada.
The one area that I noted in the questioning was what would happen in the case of this body, which is different from provinces. If a government had a problem in the Senate — the Senate refused to pass a very important piece of legislation that had passed in the House — would it be impossible for the government to call an election? Under the current law, which essentially does not prevent that, the answer is no. The way the law is worded it does not prevent that. There is nothing in the law that would prevent the government from saying to the Governor General, ``See, we cannot govern, please call an election, you have the discretion to do so.'' It would be a question of them justifying it before public opinion.
With the way the law is worded now, it would not be a problem. I would have worded the law much more strongly. I would have had the law say, ``Only in cases of loss of confidence can we have earlier elections,'' or something to that effect. I am not a constitutionalist or a lawyer, so do not get me down on wording, but just a basic principle that says it is only in cases of lack of confidence that a premature election could take place. If that required a constitutional amendment, so be it. It is a purely federal institution, so the provinces would not have to be involved, and it would not be that big of a deal, ultimately.
The government wanted to avoid all of that, so they have what I feel is an unfortunate first clause. The law should have said, ``The next election will take place on October'' — whatever it is — ``and every subsequent normal election will take place the fourth Monday,'' or whatever it is. However, it says that nothing in this law shall take away from the powers of the Governor General and so forth. It is hardly announcing that something changed if the first sentence implies that there is no real change. It is an unnecessarily cautious law.
Studying what other countries do, that is the basic principle, namely, that it is only when the government loses the confidence of the House of Commons that a premature election could take place. In Canada, I know there is a lot of speculation to the effect that we do not know what kind of law is in fact a confidence law. Again, my argument is that there is one way to find out. The government goes to the House and says, ``If you have no confidence, vote non- confidence, and if you cannot do that, we do not consider this to be a law of non-confidence.'' It works extremely well that way in many countries, instead of playing games and saying, ``If we vote this down, it means lack of confidence.''
That is the way I would deal with the issue, and, in that case, in terms of the Senate, maybe we would have to decide whether the Senate should have a veto. Should an appointed body have a veto, or should we not move in the direction of the House of Lords, where it is only a suspension and not a veto? Of course, if the Senate becomes elected, then we have a whole bunch of other factors which we can also get into.
I have tried to address the various points that I have seen raised, but I want to stress the crucial point that from the point of view of electoral democracy, fixed election dates is a good idea.
The final point I want to make is that an ordinary citizen, it seems to me, would say to a politician in power, ``If you do not favour this, it is because you like the idea for your own partisan reason of calling the elections when it suits you.'' A politician has to justify that or has to be able to say no. If that is the reason politicians do not want to change to fixed election dates, then they would have a hard time explaining to an ordinary citizen that the Prime Minister or the government wants to be able to call an election when it suits them. In a sense, the burden of proof is on elected people, especially those in power or those who expect to be in power some day, to justify that to the citizen.
The Deputy Chairman: Thank you, professor.
There has been some concern that if the date of the next election is known well in advance the government could use its access to the public purse to do government advertising well in advance of the election before the writ period. Should there be some safeguards added to this bill to prevent that?
Mr. Milner: The idea is a good one. It does not change the situation very much. If we look at what is happening in democratic countries without fixed election dates, Canada is somewhat of an exception these days because we seem to have constant minority governments. However, in the case of countries where they get majority governments — and, during certain periods, we were like that — there is a basic understanding that an election would take place regularly. For example, in Britain, the last few elections have been every fourth spring. In Quebec, we have had regular elections almost every fourth spring as well. There is a presumption in most cases that elections will take place at a regular time. Therefore, the temptation for governments to spend their advertising money for partisan purposes is equally strong under the current situation. While I would agree that it is probably a good idea to limit such spending, I do not know what kind of law you have in mind. In general, we have to consider these kinds of prohibitions as a general rule. If it is more necessary under this law, that is good reason to start thinking about it, but I would never say that the law should be held back because we do not have sufficient protection in place at this time.
The Deputy Chairman: Mr. Kingsley pointed out last night that Treasury Board policies now impose a ban on certain kinds of government advertising during a writ period, and he suggested that that should be extended to four weeks before the writ period.
The gentleman from B.C. said it is 90 days there. He suggested even longer would be better. What is your opinion on something like that? It is not in the bill. It is in Treasury Board policy.
Mr. Milner: If you do not know when the writ period is, is the point that you cannot go backwards?
The Deputy Chairman: I am saying that with fixed election dates you do know the date.
Mr. Milner: The policy now is only during the writ period. Is that what you are saying?
The Deputy Chairman: Yes.
Mr. Milner: It would seem to be a useful amendment. On the other hand, I would not delay the bill unnecessarily. I would get the government to commit itself to pass the second bill to that effect. Again, these are technical issues that I do not feel it is my job to address. It is a useful concern to raise, and if it can be added as a friendly amendment that the government would accept, by all means, but it should not be used as a way of blocking this from happening.
The Deputy Chairman: Have you found in any of the countries in which you have worked and studied that the period in which parliamentarians are campaigning expands because of the fixed date, so that they are in a constant election preparedness state?
Mr. Milner: As I said, countries with fixed election dates have had them for years. I do not know if you asked Mr. Neufeld. Did he see a change in British Columbia?
The Deputy Chairman: He said, no.
Mr. Milner: He said, no, and my sense is I do not believe anything is happening in Ontario now that is different from what would be happening if it was not a fixed date. That is the best we can do.
I am saying that the countries that have fixed election dates do not look like the United States. There is not that kind of almost endless campaigning. That I can tell you.
The Deputy Chairman: Thank you, professor. I have two senators on the list, but before we go to the senators, I would just point out that only two of us are from Ontario, so we are in the minority here.
[Translation]
Senator Joyal: I was listening to you list the added advantages, based on your thoughts, of having fixed election dates, that is, it is easier to recruit women, and people are more aware of the election date. How do you explain that there are more women in Westminster than there are in the U.S. Congress or Senate, when the United States has had a fixed election date system for 220 years, and the United Kingdom has had flexible election dates for some 300 years? How do you explain that voter turnout in Great Britain is much higher in various levels of society than it is in the United States where the vote tends to be concentrated in the middle and upper classes and that large segments of the population have very low turnout rates?
My conclusions are not as direct, comprehensive and all-encompassing as yours when we look at the two systems in action over a very long period of time. To my mind, to be able to truly observe the trends, it must be done over a certain period of time, and not over two, three or four-year election periods. Election trends must be considered over a very long period. How do you explain the absence of all of the advantages you described in the U.S. system and the fact that they exist, to a certain extent, in countries with flexible election dates?
Mr. Milner: As regards the participation of women, I could easily show you that the United States is the exception among countries with fixed election dates, like the Scandinavian countries and Germany where, in general, the participation of women in Parliament is much greater than in countries like Great Britain or Canada where election dates are flexible. It is primarily linked to the proportional system, and to my mind, we cannot use figures like that on one side or the other when we are talking about the participation of women.
All I was saying is that in a concrete situation, it will be easier to recruit women. That does not mean that we will go from 20 per cent to 40 per cent, but in a marginal situation, it could have an effect. So we cannot use global figures for that, but in reality, it is quite clear.
As regards voter turnout, I must start by saying that turnout in the United States and Britain is now much closer, as there was a sharp decline in Great Britain, as in Canada, while in the United States, at least during the last elections, voter turnout increased. In both cases, it is about 60 per cent. Bear in mind that the Americans provide figures on all citizens 18 years of age and older, not just people who are registered and therefore eligible to vote. When we make the comparison, we see that turnout in the United States is now at about the same level as in Great Britain and Canada. That is unfortunate, because it means that there has been quite a significant drop here.
Second, the reason why voter turnout is low in the United States has nothing to do with fixed-date elections. I think if there were no fixed election dates in the United States, the turnout would be even lower. The reason why voter turnout is so low in the United States for legislative and even presidential elections is because no efforts are made, except in places where parties have an opportunity to win and where the election is not won ahead of time. So all of the efforts are focused on a minority of states or seats.
The American system, because of the electoral and presidential systems, is such that most citizens, during an election, do not even get a visit. Let us take the example of the most recent U.S. elections, which were highly contested in most states: neither the Democrats nor the Republicans purchased any advertising. They did not spend a cent on advertising, because they already knew that the state was either won or lost ahead of time. They invested everything in 17 or 18 states, which were neither blue nor red, but split. Millions and millions of dollars were invested in those States, so those people listened extensively, but in other states, people did not hear anything.
In the case of the House of Representatives, there is only real competition in 10 to 15 per cent of states, at most. In the vast majority, seats are won ahead of time either by the Republicans or the Democrats. So voters are not very interested in voting, and the parties do not do anything to reach out to them, because it serves no purpose. They invest all of their resources in electoral districts where there is competition.
The last time, the Democrats made a difference. Mr. Dean said that he was nevertheless going to work in certain cases to build a presence for the future. But the vast majority of investments went to competitive districts or states. That is what explains the low voter turnout in the US. If they want to, it is easy for them to increase voter turnout. It has nothing to do with fixed election dates; they must maintain the status quo.
At the presidential level, they must abolish the Electoral College and that way each vote will have an impact. In the House of Representatives, they must change legislation to allow judges and non-partisan electoral officers to define electoral boundaries instead of leaving that to politicians. They do that to ensure that the candidates will be re-elected. If we want to talk about the U.S. system, there are changes to make, but it has nothing to do with fixed election dates.
Senator Joyal: That is what I think. I think you are listing advantages of fixed election dates that do not exist. In particular, I would like to go back to the issue of women. The countries that you mentioned, including the Scandinavian countries, all have gender-based proportional representation systems with alternative votes.
Mr. Milner: Not necessarily.
Senator Joyal: The parties are the ones that make the difference. Why? Because when the parties choose a candidate, they must alternate from one list to another. That is what has led Scandinavian countries, in particular, to reach such high levels of almost equal participation by women. Does Finland have the highest level of participation by women?
Mr. Milner: No, Sweden does.
Senator Joyal: It varies by a couple of points over 40 per cent. France is a good example of a country with fixed election dates. At the presidential level, of course, we saw that quite clearly last week, and it is the same at the municipal or local levels, and yet France has formally introduced legislation to require political parties to present 50 per cent women. If not, they will be required to pay fines. So there are factors that, to my mind, are much more determinant in increasing the participation of women than fixed election dates.
Mr. Milner: We agree on that.
Senator Joyal: Allow me to doubt your statement that it will help recruit women. I have been involved in candidate selection for Quebec at the federal level since 1971, for all federal elections and in several by-elections, since I have that responsibility within the structure of the party that I represent. And each time that I have had to convince a potential female candidate to run, no one has ever objected to the election date. The factors women use to determine whether or not they will run have absolutely nothing to do with the fact that the election will take place at a fixed date in May, as in British Columbia, or in October, as is proposed here.
As you and Mr. Neufeld said, people know — and you are from Quebec and have experienced it as I have — that in the fourth year of a mandate there will be a general election. Beyond the fourth year, there are huge risks electorally speaking. So, there is an almost automatic readjustment phenomenon. We are currently seeing it in Quebec. I do not think that your statement on the participation of women in politics is accurate.
Mr. Milner: I agree the voting procedures are more important. But it would be interesting to ask the question.
Senator Joyal: And the culture of political parties.
Mr. Milner: Absolutely. But the culture is linked to that. We could survey all women in politics, at all levels, to see if it will help them to know the date of the next election.
In my view, some of them would probably say that it might help. But it is marginal; I would not count on that too much.
Senator Joyal: I share that view. My second question deals with the limitations you are suggesting to the powers of the Governor General or I imagine a lieutenant-governor to refuse dissolution or to grant dissolution based on a confidence vote.
I think that our system has some flexibility that must be preserved. I think that in this regard, subclause 56.1 of the bill is timely. Clearly, if we want to change that, as you are aware, we will have to amend section 41 of the Constitution, because we are dealing with the powers of the Governor General or of the lieutenant-governor. Section 41 clearly states that if changes are made to the powers of a lieutenant-governor or the Governor General, the Constitution must be amended. And there, you would be changing the powers of the Governor General. So the Canadian Parliament cannot make that kind of amendment alone. That must be done by the Canadian people, as indicated in section 41.1.
[English]
If I may read it to you:
An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
[Translation]
If a province such as British Columbia wanted to limit the discretion of the Governor General, even if it were just in that province, it would need the agreement of all of the other provinces.
[English]
Mr. Milner: It is unfortunate, I think, but I stand corrected.
Senator Joyal: There are many things that are unfortunate but which have served us well in this country.
We have to be realistic in terms of the law of the land and how we can change the law of the land. There are laws we can change, such as the electoral act. That is what we are asked to do at this point in time. However, I do not believe we can do that as easily as one might wish, and especially to define what is a confidence motion. As you know, it is a difficult issue to define constitutionally, even though, as you suggested, we might benefit by defining confidence, as we might benefit by defining constitutional convention. That is part of the legal reality of the land and it is not easy to do, especially when we are looking to the electoral act.
It is important to measure what is proposed, which is essentially the framing of the prerogative of the prime minister and in which context should the prerogative remain. That is essentially the balance that we are asked to achieve in this bill. You suggest we should limit the prerogative on an even stricter basis than the one contemplated in proposed section 56.1 of the bill. However, I am not sure that we would improve democracy and citizen participation if the government in power feels that it should consult the population on the basis that there is an issue whereby in order to act, democracy calls that government should receive a mandate from the voters. That is a democratically legitimate purpose, to consult citizens and ask their opinion of the government mandate in relation to the implementation of free trade, for instance, which will change many of the rules of the game.
I do not understand why it is incompatible to democracy that voters might be called at the point in time when the issue is of such an important nature that they should express their views on such an issue. I do not see that there is a contradiction.
Mr. Milner: First, many countries manage without it; and secondly, that is the purpose of referenda. If it is so important that the people should be consulted, we have a referendum. In an election, it is pretend to say we are consulting the people, because people vote in elections on everything. There is a legitimate fear that this is a sneaky way of getting re-elected because the government is going to the people on a popular issue and it will get re-elected.
When there is a necessity for real consultation of a population that cannot wait until the next election, that is the purpose of referenda. To say that we should give governments discretion to call elections when they choose because there may be these special circumstances, and therefore invite all of the negative aspects I have described, is unjustified. All these other countries that have their elections regularly every four years on a certain date seem to manage fine. In the states of Australia and the provinces of Canada, I feel we will be seeing more of that. It seems to me that it works well. Maybe we should have had a referendum on free trade.
Senator Joyal: Referenda and elections are two different things. In a referendum, you ask for people to say yes or no on a certain issue. The ones who say yes might be of a different allegiance politically than those who say no.
Mr. Milner: How do you know that an election is in fact a mandate to do what a government says it will do?
Senator Joyal: They campaign on a platform.
Mr. Milner: That is not enough.
Senator Joyal: I believe the 1988 election essentially focussed on the Free Trade Agreement.
Mr. Milner: What percentage of the vote did the Conservatives win?
Senator Joyal: They won with a fairly large majority of MPs.
Mr. Milner: No. They had a plurality, not a majority. A majority of people voted for parties who were against the Free Trade Agreement.
Senator Joyal: Yes, but the mandate was given to a specific party to implement a deal, where in a referendum you just consult the population. That is a totally different method.
Mr. Milner: Absolutely, but you were saying that we are combining the two.
Senator Joyal: You can combine the two in an election. That is what your predecessor at the table suggested, that when we combine a referendum with an election, we have an answer to one question and then we have a team to implement the result of it, while in an election, both questions are asked at the same time.
Mr. Milner: In which case no one knows what the answer means.
Senator Joyal: When a government is elected on an issue that is very much at the centre of a platform, we know exactly what that government will be expected to do and the Senate knows exactly what it will have to do when the majority of voters have expressed their views on such an issue.
Mr. Milner: I should remind you that the 1988 election was actually four years after the previous election. It would have fit in perfectly well with a regular four-year term. There was no need to call a special election at that point.
Even if you are right, there are few cases where the government cannot wait until the next regular election to fight it on the particular issue. You have to stretch a great deal to say that here is a case where only a special election would justify.
Senator Joyal: I know that this situation might happen only rarely. The 1988 election is a long time ago, almost 20 years ago, so it shows that it happens rarely. However, the possibility for it to happen is there and the flexibility in the system is there. My point is that the flexibility in the system is not inimical to the maintenance of democratic rules, even in the context of a generally fixed election dates.
Mr. Milner: I weigh it differently. For me, that is pretty minor, compared to all the arguments in favour of this rare possibility that might happen some day and could probably be dealt with by a referendum in that case.
Senator Di Nino: First, I would like to make a comment, since my colleague suggested that he has not experienced the issue of potential female candidates not running because of the uncertainty of elections. I have probably been around as long and as often as my colleague, and I can assure him and put on the record that I have had many instances in the last number of years — I am not talking about dozens — where the uncertainty of an election has led to good female candidates not accepting invitations to present themselves.
I want to go back to your main point. You were eloquent and forceful in your presentation this morning, but even more so when you appeared in the other place, which, by the way, with all-party approval passed this piece of legislation. To the best of my knowledge, no party opposed this legislation in the other place. It is those people who have to live with this legislation much more than us.
I was struck by your strong comments about the discussion focussing too much on the concerns of parliamentarians and not on the concerns of the people, who are at least the voters of this country, but more the citizens of this country.
I want to clarify a point that you made in your testimony in the other place, where you said that the government is able to manipulate the system through politicians. That is not an exact quote.
I believe you tried to insinuate that, with a fixed-date election, the potential to manipulate an election for the benefit of the political party and the politicians is really what the whole principle is all about. I do not want to put words in your mouth. I want to see if you can repeat it here for our benefit and make further comments on it.
Mr. Milner: I would have thought that was rather obvious. Certainly, that is the public opinion, including that of the columnists in the newspapers. They spend many tonnes of ink speculating on the interests of the government in calling an early election or a late election.
I also then, in my presentation, talked about how it is so much easier to run government departments, to run parliamentary committees, everything, if the next election date is known. Matters can be organized better just on pure efficiency grounds. Directors General of Elections would be so happy to have that; it makes their lives so much easier and, therefore, improves democracy.
Governments are rational. If a prime minister can choose the day of the election and that prime minister receives all this information about polls and focus groups and so on, that will be a factor. It is absurd to think it would not be a factor. Parties would throw out a leader who would say, ``I will pay no attention to our partisan interests in calling the election dates.'' They would say, ``Go get another job.''
The point is that institutions create incentives. If we change institutions, we get different incentives. It has nothing to do with the individuals involved. That is its nature. People are smart enough to know that. If you create an incentive for politicians to choose dates that serve their partisan interests, they will do so, and then we will get speculation, and ordinary citizens, who are already cynical, become more cynical. They say, ``We know what is going on here.''
I guess the reason I did not repeat it today is that it seems obvious to me. Maybe when you are sitting here it is not as obvious, but I believe it is obvious out there.
Senator Di Nino: The benefits to those who administer the system have been eloquently put on the record by the Chief Electoral Officer, and also Mr. Neufeld this morning from British Columbia.
One of the concerns that has been expressed by particularly those opposite is the fact that the Prime Minister, in effect, still has the ability to manipulate the system. I wonder if you could make a comment on that.
Mr. Milner: Under the law, you mean?
Senator Di Nino: Yes.
Mr. Milner: Well, that is one of the reasons, and I believe Mr. Neufeld said this, that it is informed public opinion or mobilized public opinion that will be the crucial factor.
In British Columbia, this is happening now. In a minority government situation, especially under our electoral system where parties do not cooperate, it is different. However, in a majority situation, as in Ontario and British Columbia — and it has been constantly — people are coming to say, ``This is the time when the next election is taking place.'' If a government, not forced to do so by others, but on its own, decides to change that, they will pay a political price. That is what I hope will happen with this law. It is a realistic expectation. It partly depends on the government, on your party, actually publicly stressing the importance of this law, not treating it as a technical change, but saying, ``No, an important step in democracy has been taken when this law is adopted,'' and really trying to get public attention to this. It is harder to do that in a minority government situation because very few people expect the government will last until whatever the date is for the next election.
The Deputy Chairman: October 2009.
Mr. Milner: In a sense, under minority situations, it is difficult to get that kind of public attention. It will not quite have the effect that one would want. However, in the long term, if we had a different electoral system, it would work even in minority government situations. We would then have structured cooperation, where two parties or more would actually agree and would govern together until the next election date.
That is what happens in just about all the countries I have described. They have fixed-date elections, and they have coalitions, or they have a minority government supported in an agreement with small parties, and they work. Very seldom do they have premature elections, or relatively seldom. Even in a minority government situation, if we had a different electoral system, it would work. I am not so optimistic to believe that will happen in the next few years.
It is true that the effect of this law will be relatively limited if we constantly have minority governments. That is the reality. That does not mean that it is not a good idea, just that that is the reality in which it operates.
Senator Di Nino: However, you would agree that the public would have an expectation that it is possible that this law would be respected.
Mr. Milner: I would hope so. I realize it is hard under these kinds of situations, but the government should try to say, to the extent it can, ``We will try to govern until that date. When we pass that law, it is a commitment to try to govern, even though we have a minority. We will not take action, if we can avoid it, to bring an election earlier than that day.'' Will it be credible given the past and so on? We have to step in that direction. The next time there is a majority government, I hope that that majority government from that day forth says, ``We will respect that, according to the law, the next election will take place on this date, and we will do everything we can to respect that.'' I am hoping that will happen. Especially, as you say, if it is passed unanimously and with support of all the parties in the House, it is incumbent upon them to act upon their words when they pass the law.
Senator Di Nino: Another point about which there has been extensive discussion is the flexibility of the Chief Electoral Officer to change the date of the election if for some good reason he or she felt that the date fixed by law would be inappropriate or the elections could not be held — other than a disaster. That is contained in different laws. Do you feel that proposed section 56.2(1), gives enough flexibility and does foresee sufficiently so that there will be some instances in the future, and will that allow the Chief Electoral Officer in effect the flexibility that he or she needs to make the recommendation?
Mr. Milner: My impression is that it was written in such a way that it looked at the experience elsewhere and said, ``This seems to work.'' Many countries for many years have had fixed election dates under certain rules, and they work well. I believe that is how the date was chosen. I was not involved in it, so I cannot speak for the government, but my impression is they looked at that, and they looked at various contingencies and that seemed to work. I cannot look over their shoulder and say, ``You have left out this contingency.''
The Deputy Chairman: If there are no further questions, I thank you very much, professor, for coming from Montreal and taking some time out of your busy day.
The committee adjourned.