Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence for March 5, 2008
OTTAWA, Wednesday, March 5, 2008
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:10 p.m. to undertake a comprehensive review of the amendments made by An Act to amend the Canada Elections Act and the Income Tax Act, S.C. 2004, c. 24.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Today the committee undertakes the study of the Act of Canada that requires, in accordance with the Act to amend the Act to amend the Canada Elections Act and the Income Tax Act, S.C. 2004, c. 24, which was assented to on May 11, 2006, that, within two years following the coming into force of that act, the Senate committee that normally considers electoral matters shall undertake a comprehensive review of the Act to amend the Canada Elections Act and the Income Tax Act, S.C. 2004, c. 24.
All these changes to the Canada Elections Act concerned, among other things, the registration of political parties and the number of candidates that a party was to present and other matters.
It is a pleasure for us to welcome the first witnesses, from Elections Canada, Mr. Marc Mayrand, Chief Electoral Officer, Ms. Diane R. Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel, and Ms. Michèle René de Cotret, General Counsel. Thank you for coming despite this terrible day. The winter is really very much with us this year. Mr. Mayrand, you have a statement; so we are listening.
[English]
Marc Mayrand, Chief Electoral Officer, Elections Canada: I am pleased to appear today to contribute to the committee's review of the amendments effected to the Canada Elections Act by former Bill C-3, which has now become Chapter 24 of the Statutes of Canada, 2004.
As the committee will recall, Bill C-3 was passed by Parliament in response to the Supreme Court of Canada decision in Figueroa v. Canada (Attorney General). The court had ruled the former system unconstitutional in that it required a party field at least 50 candidates in a general election in order to be registered. Only registered parties can issue tax receipts, have their candidates' party affiliation appear on the ballot and receive campaign surpluses from candidates.
In its decision, the court found that restricting those rights to parties with at least 50 candidates gave larger parties advantages over smaller ones. That restriction effectively compromised the right to meaningful participation in the electoral process.
Bill C-3's objective, in response to that decision, was to respond to three main concerns: first, the legislative gap created by the Figueroa v. Canada (Attorney General) decision by creating a new party registration scheme; second, the risk, or perceived risk, of tax abuse by the extension of the ability to issue tax receipts to groups that do not have a genuine political vocation; and third, the risk of third parties registering as political parties to take advantage of the higher spending limits without fielding candidates.
The main amendments made to the Canada Election Act and Income Tax Act by Chapter 24 of the Statutes of Canada, 2004, are as follows: An eligible party — a party that has completed all the administrative requirements for registration — becomes registered when the nomination of at least one candidate it supports has been confirmed for an election.
The expression ``political party'' is now defined as an ``organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.''
More information is now required to become a registered party. As of 2004, parties must provide the following additional documentation: the name and addresses of 250 electors — previously, only 100 were required — and their declarations that they are members of the party and support the party's application for registration; the name and address of the leader of the party, as was previously required, as well as a copy of the party's resolution appointing the leader; a declaration of consent to act as such by each of the officers of the party — of whom there must be at least three in addition to the party leader; and the leader's declaration that one of the party's fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.
Moreover, as of 2004, parties can be deregistered at any time if they cannot prove to the Chief Electoral Officer that they have at least 250 members and 3 officers in addition to the leader.
Every three years, the parties must supply the names, addresses and signed declaration of 250 electors who are party members. In addition, every year, the party leader must provide a new declaration supporting that the party's objectives still correspond to those of a political party as defined in the act.
A number of offence haves been added to enforce these new provisions. In some cases, the judge may even order the deregistration and liquidation of the party's assets and those of its riding associations.
The act now also provides for civil recourse by the Commissioner of Canada Elections. If the commissioner has reasonable grounds to suspect that a registered party's objectives no longer meet the definition of a political party, he or she may, after giving the party a reasonable opportunity to respond, apply to a court for an order to deregister the party. A political party against which such an application is made by the commissioner cannot issue tax receipts for the duration of the proceedings, unless it has received judicial authorization to do so.
It is now illegal for a political entity regulated by the act to solicit or accept a contribution where representation has been made to the donor that all or part of the contribution will be transferred to an entity other than those regulated by the act.
[Translation]
The amendments to the Canada Elections Act effected by Chapter 24 of the Statutes of Canada 2004 have now been in force for nearly four years, and I can assure you that their administration has not caused any particular problems for us at Elections Canada. When the bill was passed, there were nine registered parties and three eligible parties. All registered or eligible parties were required to provide Elections Canada with the additional information now required by the act within six months of the coming into force of the new provisions. All of them complied.
In addition, in June 2007, all registered parties and all but one eligible party were able to meet the deadline for complying with the obligation to supply, every three years, signed declarations of 250 electors who are party members.
The other party met the extended deadline granted by my Office for providing that information.
There are currently 16 registered parties and three eligible parties in Canada. However, not all applications for registration received since the coming into force of the new provisions were approved. In fact, 12 applications were refused. Four of those refusals involved entities that had already applied for registration under the former rules, when the new provisions came into force and were unable to meet the new requirements of the act. Some of the other cases involved very incomplete applications which were ultimately refused because they did not meet the requirements of the act.
In one case, the information provided in the application raised suspicions that some of the members' declarations were false. After checking with the persons identified in those declarations, the application was refused. We decided it was appropriate to refer that application to the police, but no proceedings were initiated.
In another case, the final application was refused because it was incomplete. The party subsequently submitted a second, complete, application, and that party is not an eligible party.
From an operational perspective, the new provisions are working. For one thing, the leader's statement regarding the party's essential objective required by the act is taken at face value unless there are grounds to believe otherwise. Moreover, the requirement for declarations from 250 members was proven to be an effective means to ensure that the party is authentic. As well, the administrative requirements have obliged organizations that wish to become registered parties to demonstrate an organizational structure.
Finally, the obligation to supply 250 declarations every three years, while perhaps time-consuming for the parties, avoids making the Chief Electoral Officer responsible for determining when a party should be required to supply such declarations. In short, it is a useful tool.
Thank you, Madam Chair. We will be pleased to answer any questions you may have.
[English]
The Chair: Thank you very much, Mr. Mayrand. That was extremely interesting.
Senator Di Nino: This is one of those interesting changes that some of us expressed concern about at the time it was being debated. I was about to ask you how many parties had not been approved. You said 12 were refused. Why were they refused?
Mr. Mayrand: We provided a table in the documentation describing each of the 12 cases.
Senator Di Nino: I did not see that.
Mr. Mayrand: It is generally because the basic information required was not submitted, so the application was incomplete. Some parties did not have the 250 members and some did not meet other requirements in the act.
Senator Di Nino: All of these would be technical failures as opposed to substantive issues and not deemed to be problematic. Do we investigate these individuals through a police check, for example, to see that they are good citizens?
Mr. Mayrand: No, we do not do that. We rely on the statement made by the leader and the officers of the party, as well on as the declaration of the 250 members of the party.
Senator Di Nino: I believe you said that at least one came back with the necessary information and was subsequently approved. Were there any others of the 12 parties that were later approved?
Mr. Mayrand: No, there were not.
Senator Di Nino: Of the 12 parties that were refused, only one eventually complied.
Mr. Mayrand: Yes, that is correct.
Senator Di Nino: Are there any applications pending? Have there been any more applications?
Mr. Mayrand: We currently have 16 registered parties and three that are admissible, meaning that they have met the administrative requirements and are waiting to file a candidate.
Senator Di Nino: Is it fair to say that you have not seen a rush of applications at this time for parties to be created?
Mr. Mayrand: That is correct.
Senator Di Nino: How many parties have been deregistered since this new law came into being, if any?
Mr. Mayrand: None of the enforcement provisions have been triggered so far with the cases we have looked at, which, again, remain a relatively small number; however, none have been deregistered.
Senator Di Nino: How is the list of 250 names checked for authenticity?
Mr. Mayrand: On the form the members are asked to disclose some personal information that we could check against the registry of the electors. If they refuse, we will contact them to seek confirmation that the form is truly theirs and that they are truly members of the party.
Senator Di Nino: You gave us a list of all the registered parties. Would it be possible to know how much money each of them raised? I believe that is public information. I assume the money would receive a receipt. However, if not, could we know what portion would not receive a receipt?
Mr. Mayrand: I believe you can. As you said, this is public information.
Senator Di Nino: It would be handy to know what contributions were made to the parties.
Mr. Mayrand: Do you want the figures since 2000?
Senator Di Nino: If this is a relatively easy statistic to get, we might want to do it for every year to see if there is a trend.
Mr. Mayrand: Would you be interested in having the number of votes registered?
Senator Di Nino: Yes, that would be very useful. If you can provide statistics to give us an appreciation of what this has meant for the democratic system in this country — how many supporters, what contribution were made, if there were any violations that would be dealt with by you in the sense of overcontributions, et cetera — that would be useful in the process of reviewing this legislation.
Mr. Mayrand: We will do so.
The Chair: We have from you the list of parties that presented fewer than 50 candidates.
Mr. Mayrand: Yes, you have that list.
The Chair: Would many fall between 50 candidates and the maximum? I forget what the maximum is.
Mr. Mayrand: It is 6 parties, and up to 308 candidates.
The Chair: That would help us a great deal.
Senator Watt: How many parties can be accepted at the federal level?
Mr. Mayrand: There is no limit. Any organization can be accepted that can assemble 250 members and meet the administrative requirements.
Senator Watt: In other words, this country could easily go crazy. It could be uncontrollable.
Mr. Mayrand: I gather that in Australia they could have as many as 75 names on the ballot.
Senator Watt: The First Peoples National Party of Canada is newly registered this election. Which election? Is that this year?
Mr. Mayrand: It is the 2006 election. They fielded candidates for the first time in the 2006 election.
Senator Watt: How do you monitor or follow up on that? Will they or will they not succeed? Is there any information in relation to that from your office?
Mr. Mayrand: Each year, as I indicated, the leader must confirm the party objectives, so we have an annual statement from the leader, and every three years they also must resubmit a list of 250 members.
Senator Watt: Have they been doing that?
Mr. Mayrand: Yes, so far they have.
Senator Watt: When you are determining the criteria, the rules and procedures that need to be followed on how one can become a party and a member of a national assembly, do the provinces determine what the rules should be and does the national assembly also have a role to play in terms of what the criteria should be? How does it work?
I ask this question because I have never been able to understand one party that is within the system. They are not necessarily — at least from what I know — supporting the country as a whole, but they are within the central system and seem to be moving in the direction of destroying the country. How can this be accepted in the modern country that we have today? I do not understand that. Maybe you can enlighten me.
Mr. Mayrand: That is an important question. Currently, we do not apply a qualitative test as to the intent of the political platform of a party. We apply the rules that I described earlier, which are quite administrative in nature. I believe, as my predecessor testified in the past, that it is not an area the Chief Electoral Officer should step into. It could be seen as compromising the independence and objectivity of the institution if we were to assess the validity of the political objectives of an organization. Therefore, we rely, again, on the statement of the leader as to the purpose, which is to support a candidate during an election.
Senator Watt: If I understood you correctly, that could mean two things: On the one hand, it is a very political issue; and on the other hand, it could also be a legal issue. There could be room for a judge of the Supreme Court of Canada to decide if the political side of it does not take up that responsibility. That is something that may have to be dealt with down the road. Do you agree with that?
Mr. Mayrand: I am not sure, unless, again, the platform of the party and the statement from the leader of that party offended other legislation. The Criminal Code applies and governs freedom of speech, so it is not absolute in a certain sense. Maybe a court could be involved as a result of a proceeding triggered by a citizen.
The Chair: It seems to me that one of the arguments that underlay the Figueroa v. Canada (Attorney General) case that brought us where we are today was the reference to the Charter of Rights provision that every citizen has the right to vote and to stand for election. All the people to whom Senator Watt refers are citizens of Canada.
Therefore, they are stuck with it for the time being. For a long time being, I hope. That is my political position.
Senator Watt: On that point, citizens have to be involved, so I would imagine the citizens would have to trigger that, if they wished to do so.
Mr. Mayrand: They could trigger it.
Senator Oliver: I have two points. First, I gather the essence of your evidence today is that the amendments to the Canada Elections Act effected by Chapter 24 of the Statues of Canada 2004 have now been in force for nearly four years, and you are assuring us that their administration has not caused any particular problems for you at Elections Canada. In other words, it is working well.
Mr. Mayrand: For us, yes, that is correct.
Senator Oliver: My second point is about the 250 members. I have had a hand at drafting constitutions for parties and for leadership campaigns. We always keep in mind, when someone is running for a national campaign, how many names we want on their nomination form. Since this is a national campaign, we do not want them all from one province such as Nova Scotia, and if it is national, there should be someone from British Columbia, Ontario and Quebec. Here, the only condition you refer to is to have 250 members.
Is it possible, under this, that all of those members could come from a small town in Southern Saskatchewan, and does that make it a national party?
Senator Milne: They are all from one province.
Senator Oliver: Does this concern you?
Mr. Mayrand: If we go back to the Figueroa v. Canada (Attorney General) decision, the Supreme Court of Canada stressed the important contribution that some regional, local, political organizations could make to the democratic life of this country.
Senator Oliver: We are talking about national parties.
Mr. Mayrand: No.
The Chair: What if they run in only one province?
Senator Oliver: I am interested to know how you feel about the members being 250 people from one small town.
Mr. Mayrand: Again, they would have to convince citizens to vote for them, and certainly the reading I make from the Supreme Court is that they stress the importance of smaller entities in the political life of the country. I do not feel I need to go there, but historically, some parties started with a very narrow regional base and grew to a national party. The Supreme Court was very concerned not to impose barriers to political organizations. At least, that is my reading of the case.
Senator Oliver: It points out that there is a difference between a national leadership campaign for a leader of a party. However, it was my view then that it is important for this person who wants to run for the national leadership of a national party to have support in more than one small territory or region. It was my view that the person should have representation from at least three different provinces at the time. However, if you are satisfied, that is fine.
Mr. Mayrand: Absolutely; leadership contests are subject to the rules adopted by each party. Again, I have to refer to the Figueroa v. Canada (Attorney General) decision.
Senator Andreychuk: I am on the same wave length about some of these issues. When the bill was before us, there was concern for the new definition. The amendment added a purpose-based definition of ``political parties,'' meaning an organization, one of whose fundamental purpose is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election. The concern then was that the strength of our electoral system is based on your office being absolutely neutral and that any political decisions made are made elsewhere. You are responsible to ensure that it is free and fair according to the laws, practices and procedures in place.
For the first time in Canadian history we were adding the words ``to participate in public affairs'' by a political party, and the judgment would be made in your office. We asked whether you are equipped to do it. We also asked whether, if you do it, you would be tainted as being involved in the electoral commission process.
We were not concerned because of evidence we had in Canada. However, the struggle around the world is to ensure free and fair elections. We continually tell countries overseas that the electoral commission has to be free from political decisions. You cannot have a functioning democracy without that. When we added these words, that was the concern, and, as I recall it, that is what led to the review more than anything else.
I want to know how you interpret ``public affairs.'' That is the question that bothered us the last time around.
Mr. Mayrand: I believe that is an issue that would be of grave concern for any electoral body.
Our approach to the definition is to read it in its entirety: ``. . . to participate in public affairs by endorsing one or more of its members as candidates and supporting their election.'' Essentially, our position is that if you support a candidate in an election, you are participating in public affairs, because are you coming out publicly to try to convince electors.
We stay away from judgment or expressing views of the quality or nature of the participation of public affairs. That has meant that we rely on two factors; first, a signed statement by the leader of the party that they meet the definition of political party; and, second, that the party actually presents candidates in an election.
Senator Andreychuk: When we moved from the 50-candidate threshold requirement, it was thought that people could probably jump these hurdles if they took a totally neutral position. If someone had an opinion, gets a candidate and starts a party, how do we ensure that that person functions within the law? For example, one cannot promote hate using our political system. One must still comply with the laws of the land.
Who enforces that if you are not reading the constitution or tracking them? Do you rely on the press and other political parties to scrutinize the process? Is that what we are relying on?
Mr. Mayrand: The framework of the electoral act puts Elections Canada in a reactive mode, so we rely upon participants in the political process, citizens and the press to bring matters to our attention. In matters of electoral financing, we have a review authority. Those parties, once registered, have to meet the same regulatory burden as a large national party. They must file returns, explain their expenditures and the contributions they collect. We review those, and that information is readily available. For any of the parties listed, the information is available of whether returns have been filed and what is in those returns. That is available for the public to review, and they can bring to our attention any concerns they have.
Senator Andreychuk: We rely on transparency as we do in other areas.
Mr. Mayrand: Yes, that is absolutely correct.
Senator Andreychuk: Senator Oliver touched on regionalism. As I read the decision of the Supreme Court, they were concerned about the Charter and everyone's right to vote. Of course, one has to be a certain age to vote, so not every Canadian citizen gets to vote. Putting that issue aside, in some countries, the challenge is to get a regional balance and a national flavour. We see many emerging democracies, in Europe and elsewhere, where there is a need to represent more than one small interest.
The Supreme Court did not go that way and nor did this act. It relied on the premise that everyone has the right to participate and that the system will work for the benefit of all. However, all of this could erupt over one situation. What would you do if that happened, if it became political in that sense? When people raise constitutionality and motives, are you strictly off limits?
Mr. Mayrand: I do not know that we would have a role to play. Perhaps I am missing part of the question.
Senator Andreychuk: It will be a political debate. The Supreme Court made certain judgments, to which we are trying to adhere, but ultimately it is a political judgment of the rules of the game. Is that not correct?
Mr. Mayrand: Yes, and that, in my humble view, should be properly addressed by political entities and Parliament, if need be.
Senator Andreychuk: You were asked about deregistration. How does the challenge process work? People can find out on the Internet who is registered and what they are doing. They may consider that a registered party is not a legitimate political party whose fundamental purpose is to participate in public affairs. Can they launch a challenge?
Mr. Mayrand: They can file a complaint. The Chief Electoral Officer has the authority to ask a party, at any time, to show that they continue to meet the basic requirements of the act. In addition, the Commissioner of Elections can apply to the court to seek deregistration. Therefore, there are two mechanisms to determine whether the entities continue to meet the requirements of the definition and whether they continue to abide by the rules set out in the act.
Senator Andreychuk: You have 16 parties now. You could get more if you advertised. Some people might call it education; and some might call it a public service announcement. Do you do any campaigning about the new act and how it applies?
Mr. Mayrand: We do awareness with those who might be interested in changes in the act. That is a general standard procedure. We have not actively promoted the formation or creation of new entities.
Senator Milne: I apologize for missing the first part of your speech, Mr. Mayrand. It is something in which I am very interested.
Following from what Senators Andreychuk and Oliver said, the Bloc Québécois is a perfectly legal national party even though they only operate within Quebec. Under this act, it is theoretically possible that someone in one particular riding could mobilize all their friends, relatives and neighbours, come up with 250 people and get elected as a leader of a national party, even though they were only in one riding. Perhaps it is necessary in the future for Parliament to look at the definition of ``national party'' in this context.
It would be a very hot potato; many political parties would not want to go there. However, it seems to me that it is germane to the whole situation because here we are with one particular party that sways the national results strongly but is only represented in one province.
Mr. Mayrand: It will be a challenge to accomplish the objective given the Supreme Court decision. It will be very difficult to articulate legislation that would meet the entitlement to vote meaningfully in the democratic process.
The Chair: The present Government of Canada is based in large measure on a party that began as essentially a regional party. Some people have roots in the other portion of what became the governing party.
Senator Milne: The one that was taken over.
When Mr. Figueroa came before us on behalf of the Communist Party of Canada last time around, he was concerned about the proposed penalty provisions in the bill that allow for deregistration and liquidation of a party's assets — obviously, he was very concerned about it — should it commit an offence with respect to financial abuse.
Has a party ever been deregistered under this bill?
Mr. Mayrand: I am not aware of any court decision. It would require a court decision which, following the finding of a criminal offence, could impose deregistration. It has not occurred.
Senator Milne: In neither case has it occurred?
Mr. Mayrand: No, it has not.
Senator Milne: He was also concerned about the power of a court to consider factors such as a party's political program — their advertising material and their policy statements — when deciding whether a party has as its fundamental purpose the participation in public affairs.
Has that ever been a problem since then?
Mr. Mayrand: No, it has not.
Senator Milne: It appears that the act is actually working.
When Mr. Kingsley came before the committee in the other place, he offered two alternatives to this bill: the removal of the definition of a political party, along with the administrative and enforcement requirements; or the revision of the legislation to grant eligible parties that run between 1 and 49 candidates the three benefits stipulated by the Supreme Court in the Figueroa v. Canada (Attorney General) decision — the right to issue income tax receipts, have a party name on the ballot and receive a candidate's surplus. However, they would not be granted any other benefits.
Do you feel Mr. Kingsley was right? Have you considered those alternatives as a way forward?
Mr. Mayrand: At this point, I have to narrow my response to saying that I have to administer the legislation that I am tasked to administer, which seems to be working reasonably well. I am speaking from the perspective of the Elections Canada. Parties may have other views on this matter.
Senator Milne: In looking at applications that were refused since 2004, I noticed with some interest the Co-operative Commonwealth Federation, the old CCF, was trying to revive itself — that is returning to my own roots. Is that true?
Mr. Mayrand: Yes, that is true.
The Chair: I am fascinated by this list. It includes the news that some parties are registered as eligible, which I had not heard. I particularly look forward to hearing from the Work Less Party, which will be interesting.
I would like to come back to the definition of a political party. The law does not say ``national'' — it only says ``political party.'' We assume they will be national because we belong to national political parties. However, not everyone does.
To paraphrase, the definition says that one of the fundamental purposes of this group must be to participate in public affairs by presenting candidates. As you have made plain, if they present a candidate, they have presented a candidate. They have met that element of the definition.
It is the fundamental purpose part that interests me. You rely on a statement from the party leader that it is a fundamental purpose. However, ``fundamental'' is an odd word. It is nice to hear you have not, in fact, had problems. Since our study is supposed to recommend changes if we feel they might be advisable, I am trying to wrap my mind around what might be as well as what is advisable.
I will pick some impeccable organizations so that no one feels I am casting aspersions on anyone. Suppose the Canadian Red Cross or Scouts Canada or the Canadian Labour Congress sent in a signed statement to the effect that one of their fundamental purposes is to present candidates for public office and ran a candidate or two, you are not now in a position to go behind the declaration to say, ``Actually the fundamental purpose of the Canadian Red Cross is not to run candidates; the fundamental purpose is humanitarian work.'' Am I correct?
Mr. Mayrand: It is only one of the fundamental purposes that has to relate to the involvement in public affairs by endorsing a candidate.
We could review various documents — the Constitution, letter of patents — about the organization. We have not done it so far because, again, it is as to whether they would endorse a candidate. If one of the purposes is to participate in public affairs by presenting a candidate, that would meet the test, as we read the statute currently.
The Chair: I wonder if we need this business about one of the fundamental purposes if they meet the test for presenting themselves by meeting all the other criteria, the 250 members and the 4 officers.
Mr. Mayrand: As well as one candidate.
The Chair: Yes, and the candidate. Should that not be enough?
Mr. Mayrand: From my perspective, it would be enough.
The Chair: You do not see any immediate reason to say, ``No, we have to keep the fundamental purpose.'' You can reflect on that if you wish and send us a further response on that.
Mr. Mayrand: I would have great difficulty seeing a case in which I would be questioning the fundamental purposes of an organization without being seen as politically motivated or as applying a subjective judgement.
The Chair: That is very interesting. Thank you.
Senator Milne: I see that one of the reasons for refusal of the King's Party was that it had no short-form name. That is peculiar to me. How do you shorten that name?
Mr. Mayrand: I believe there were a number of other reasons. I am not sure that reason alone was responsible.
Senator Milne: Still, lack of a short-form name for a party seems to be a very superficial reason to refuse any party.
Mr. Mayrand: It is very technical. It is to allow for placement on the ballot.
Senator Milne: King's Party cannot really be shortened. The Conservative Party of Canada can be shortened to Conservative, but that is still longer than King's Party.
Senator Di Nino: We have dealt with this legislation in the past. I expressed it then, and I express it now: I am concerned about the misuse — or even worse, the abuse — by certain groups of people to access, one, the ability to promote their cause and, two, tax dollars that obviously belong to all Canadians. Also when the chair talked about reputable organizations, I believe she was trying to make a point with which I agree.
However, I would like to take a look at the other side: organizations that are not reputable.
The Chair: An example would be the Hell's Angels.
Senator Di Nino: Also an association of dangerous offenders in Canada, who might be individuals who are all in jail. If there are 250 members, they could apply. Is there some provision in the act that would negate or deny a group of Canadians the opportunity to become a political party? Is there any place we can find to give us some opportunity to strengthen or change this in a way we consider appropriate in our deliberations?
Mr. Mayrand: Currently, if they meet the various criteria, such as the 250 members, the leader's statement and the three administrators, there are no other criteria in the act that would allow us to question the purpose or the commitment unless they do not present candidates. In that case, they would not be registered.
Senator Di Nino: I am assuming that these people would meet all of the requirements that you have outlined. We allow prisoners to vote.
Mr. Mayrand: Yes, that is correct.
Senator Di Nino: Whether they are criminals or not, we are not able to stop an organization of criminals from forming a party.
Mr. Mayrand: We are not able to do so under the Canada Elections Act. As long as they are electors, it would not fall under the Canada Elections Act. They may be governed by other legislation.
Senator Di Nino: I am not aware of any. However, that has been a concern that I have had. I have also been concerned with organizations that basically want to promote a cause.
I remember that a gentleman once ran for municipal office, and I said to him, ``You are crazy. You do not have a chance to get there.'' He said, ``No, but it is great because I can put my signs out, and I am promoting my real estate company.''
It does not impact on public dollars through donations and so forth. That is a concern I had then and still have.
Madam Chair, we should be looking at this for some opportunity to include some suggested changes to the legislation. I am looking to you for some direction.
Mr. Mayrand: Again, due to the decision in Figueroa v. Canada (Attorney General) and the position that the Supreme Court took, it will be very difficult, without infringing on a democratic right, freedom of speech or some other fundamental rights, to come up with limitations as to the purpose of an organization that wishes to participate in the democratic process.
Senator Di Nino: If the Hell's Angels decided to form a political party, you would have to approve them assuming they met all of the technical requirements?
Mr. Mayrand: Assuming they are Canadian citizens over 18 years of age, I am afraid there is nothing in the act that would prevent them forming a political entity that would seek and secure registration eventually.
Senator Di Nino: I believe you know where I am going with this one, Madam Chair.
Senator Campbell: It is very rare that I disagree with Senator Di Nino. However, to be frank, all political parties push their cause. I do not want to get political here, but there are ideas that other parties put forward as their platform that I find incredibly repressive and offensive.
Reading the Supreme Court of Canada decision, the issue here is freedom of expression, and that is the basic tenet of democracy. Surely, we cannot go to some foundling democracy and say, ``You know what? Here is how we do it in Canada. You cannot form a party that does not appeal to the mainstream.'' For instance, we have the Marijuana Party here, and that is illegal. Some people would find that very offensive. In British Columbia, it is the national flower, so we would be all over this.
Anyone can form a political party if they meet these criteria. It is one thing to form a political party; it is another to put oneself in a position where one can make changes within government and the laws.
The key to your whole presentation was that we have experienced no difficulties. That indicates to me that this is probably not a bad law. If it was a bad law, all these people who are just desperate to form a political party would be after you, such as the Hell's Angels, the prisoners' rights group, the long-term offenders. That is the critical issue.
It is a dangerous step to move down that road to say who can form a political party. If the Hell's Angels formed a political party, I can guarantee there would be some law enforcement attention paid to that in one form or another.
You have done an amazing job. When this first came into being there was a worry in terms of direction. You have handled it very well. This is a good bill. Why fix something that is not broken? That is my opinion.
Mr. Mayrand: I have to bring to your attention that there are other challenges before the courts currently about other aspects of the provisions. Some of those challenges are very much based on the decision of Figueroa v. Canada (Attorney General). There are a number of rules in the current Canada Elections Act that distinguish based on various thresholds, that give rights to independent candidates over parties, registered over not registered parties, et cetera. I do not know if that is something this committee wishes to consider.
I had a meeting with political parties a few weeks back. The issue of the regime with respect to broadcasting was raised during that meeting. I am not saying that they would contravene, but there are some rules on how the allocation of time is done and on what basis that, in light of Figueroa v. Canada (Attorney General), certainly beg a review or close examination.
Another matter that will come to your attention, if it has not already, is participation in leaders' debate during an election campaign. That area right now is not governed by the Canada Elections Act, but it is a concern to parties.
The Chair: I wonder, Mr. Mayrand, if we could ask you to send us information about the various court cases that you mentioned. I am not asking you to take a position on them — unless you have already done so in court — but rather where they are, whether court decisions have been made, and whether they are under appeal. We will then be in a position to follow through with our own inquiries if we need to do so.
Mr. Mayrand: If the committee has an interest in that, I may be able to review where the case law is, as we speak, and some of the issues that are being addressed by that case law.
We could provide a table that looks at the various treatments of various political entities in the regime, which may help in your review. Again, I am suggesting that in the light of Figueroa v. Canada (Attorney General). Other cases are coming through the system right now that are seeking the full scope of Figueroa v. Canada (Attorney General) to be reflected in the Canada Elections Act. That may be something that the committee wishes to consider.
The Chair: That would be helpful, and I believe the deputy chair is weighing in to the same effect here.
Senator Andreychuk: It would be very helpful. The sections that we were dealing with are the freedom to participate in the political process, which is the underpinning of the judgment, and the right of association. That is the issue.
For people that have been convicted and are in custody, we have taken away their freedom of movement but not their other freedoms, and that is why they can now vote. The Hell's Angels may have that label, but if they have not been brought to the courts criminally, they are citizens; they have the right to vote.
Are the other parts of the cases that are being challenged on the right of association and freedom of participation, or are they on other issues and bringing in other concepts of law?
Mr. Mayrand: The Longley decision is now awaiting authorization to appear before the Supreme Court. That is an Ontario case which has gone through first instance in the Court of Appeal in Ontario. Basically, I believe six representatives of various smaller parties are challenging the threshold to access the quarterly allowance available to larger parties. I do not know if it will be addressed by the Supreme Court or when, but it is proceeding.
The Chair: To follow from Senator Di Nino's nightmare scenario of Parliament being populated by all types of unexpected persons, using the Hell's Angels again as an example, they might well be able to get 250 members together to sign a declaration saying that they belong to the ``HA Party Inc.,'' but do you believe I would be right to assume that the mechanism would be to some extent self-correcting? It would be exceedingly unlikely that they would get elected or even meet that 5 per cent threshold in a given riding for financing. They might pop up in one election, but if the Hell's Angels actually got anyone elected, we would have social problems that go beyond the purview of the Canada Elections Act.
Mr. Mayrand: Yes, I agree. None of those scenarios have even come close to materializing in the current regime. At the end of the day, a candidate needs to get support from electors. I assume it would be very difficult for a group, such as the one you described, to attract any type of meaningful support from electors. I cannot see that happening. Maybe I am naive.
The Chair: Maybe it is naive; maybe it is supremely realistic. I do not know.
Mr. Mayrand: We have to trust our citizens.
The Chair: At this point, we are just beginning our study, so obviously we will have some more work to do. If you could give us that long list of further information, that would help us as we move forward. In the meantime, I thank you all for this useful introduction to our work.
The committee adjourned.