Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence for March 13, 2008
OTTAWA, Thursday, March 13, 2008
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:50 a.m. to continue its consideration of 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.
[English]
The Chair: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs is continuing its review as required by statute of amendments made by an Act to amend the Canada Elections Act and the Income Tax Act in 2004.
[Translation]
We are pleased to welcome witnesses representing four political parties. Yesterday, we heard witnesses who spoke on behalf of the parties represented in the House of Commons as well as witnesses from parties that are not as yet. We do so again this morning, receiving parties that are not yet represented in the House of Commons.
It gives us great pleasure to welcome first Mr. Peter Graham, Finance Critic, Green Party of Canada, Mr. Miguel Figueroa, Leader of the Communist Party of Canada, Mr. Ron Gray, Leader of the Christian Heritage Party of Canada and Ms. Anna Di Carlo, Secretary of the Marxist-Leninist Party of Canada.
[English]
Peter Graham, Finance Critic, Green Party of Canada: On behalf of the Green Party of Canada, I would like to express my appreciation at having been invited to appear before you today.
It is my understanding that it was the Figueroa ruling by the Supreme Court of Canada that led to your seeking the Green Party's position today. The crux of that ruling turned on the phrase ``meaningful participation.'' The question I am proposing to answer is what constitutes meaningful participation in Canadian elections in the 21st century context if our ultimate goal is peace, order and good government.
First, I would direct your attention to a paper by Dr. Max Bazerman, of the Harvard Business School entitled Climate Change as a Predictable Surprise. Professor Bazerman outlines a number of biases that are obstacles to good policy. I will tie this paper to the electoral system. I hope you will have a chance to read the paper it after my presentation.
Much of the argument that I am about to put forward will rely on this paper and the famous book by Thomas Kuhn, The Structure of Scientific Revolutions, that is ready available from many bookstores. I suspect many of you will be familiar with that book.
The Bazerman article outlines some of the more obvious and serious obstacles to the formulation and enactment of good policy within a modern democratic context — namely cognitive, organizational and political biases. To these, we would add the problem of paradigm and cross-paradigm communicational problems identified by Kuhn.
Think for a moment of some of the great progress that civilizations have achieved in the past such as the major discoveries in the modern sciences of astronomy, chemistry or physics. In addition, there have been the great social achievements such as the abolition of slavery or the ending of the Inquisition. I think everyone here would agree that it would have been better if those changes had happened a bit more rapidly.
Kuhn provides what I consider a convincing analytical framework for understanding the dynamics of important scientific and social revolutions. That framework explains some of the slowness with which societies enact large-scale change.
Today, Canada is facing what the Green Party considers the greatest threat that we have ever confronted. Thus far, Canada's government has, I think, failed to recognize the real obstacles to addressing that threat. In fact, we believe that the Canadian electoral dynamics contribute to the entrenchment of those obstacles.
For the Green Party of Canada, meaningful participation and a meaningful contribution to the country that we love means far more than votes earned on election day. For us, meaningful participation means the possibility of removing those obstacles and facilitating another paradigm shift.
As a third-time candidate and finance critic on the shadow cabinet, I think I know my party well enough to tell you that whatever is required for parties to be listed on the ballot, Green Party candidates and Green Party riding associations will do it. As long as the playing field is level, we have no complaint. Even though in principle, we advocate for the inclusion of as many voices and as many points of view in our democratic process as possible, as a fundamental principle of good policy, we also recognize a more important obstacle to meaningful participation. In our opinion, meaningful participation is not necessarily diminished by fair and equal thresholds. The current problem as we see it is not so much how to separate the ``serious'' parties from the parties who put forward ``frivolous'' agendas. It is not so much who should be on the ballot. To us, being on the ballot and being able to participate meaningfully are two separate issues entirely.
For example, how can we participate meaningfully when the only role open to us as far as the mainstream media is concerned is the role of ``also ran''? How can we participate meaningfully when, as in my case, the editor of the local newspaper offers as a quid pro quo that if I put on a radiation suit and organize a protest I will get coverage, otherwise, I get none?
How can we participate meaningfully when a national television newscaster belittles our leader Jim Harris like a child during an election campaign or it is suggested on national television that Greens have a martyr complex? How can we participate meaningfully when our leader is excluded from the televised leader's debate even when more Canadians will vote Green than at least one of the other parties represented in the debate?
We believe that fundamental change is needed and we will work diligently to bring about that change. However, we are not revolutionaries. We are not asking for the right to distribute propaganda or to subvert otherwise rational Canadians. We are apparently the only federal party that is totally comfortable with the current hard science and policy directions that the latest science is suggesting. Today in Canada, by accepting the results of hard science and rejecting what we consider an outdated conventional wisdom and outdated ``faith of our fathers,'' the Green Party of Canada finds itself outside of the mainstream paradigm.
I did not come here today to put forward the latest conspiracy theory. I do not see bad faith or sinister motives on the part of anyone leading to the current situation.
The problem is systemic and it is inherent in any liberal democracy in the age of mass media. Media companies seek to be successful. Success is measured to some degree by readership. Readership translates into higher advertising rates and profitability.
The main question we need to address now is what are the main characteristics of the message that will increase readership? In other words, will it be in the media's interest to put forward an overall messaging strategy from within the dominant paradigm or from outside of the dominant paradigm? How will advertisers react if their messaging challenges the dominant paradigm?
If we juxtapose the Bazerman article with commercials of SUVs in pristine wilderness settings, we can start to recognize the outlines of what we consider a serious obstacle to the achievement of peace, order and good government in Canada.
If we now approach the same systemic problem from the electoral perspective, we find almost a mirror image of the same dynamic. I would like to suggest that the political class has, by and large, determined that success is measured by the equivalent of readership, success is measured in votes.
Within the current mass media context, we must now ask ourselves how politicians maximize the number of votes they earn on election day. Clearly, reassuring voters that the old comfortable paradigm of our forefathers retains its validity will be the successful strategy until the cracks in that paradigm become too obvious to ignore.
In the context of predictable surprise, and I would add the predictable and imminent catastrophe of climate change, that transformation is simply occurring too slowly to qualify as peace, order and good government. Furthermore, more Canadians are simply opting out of a system that is increasingly failing to respond to that new reality.
Professor Bazerman recommends, first and foremost, aggressive education to be better able to audit decision making processes for bias. The Green Party of Canada agrees with that assessment, particularly given the abundance of false and misleading items in the mainstream media that appear with alarming regularity. We also strongly recommend that mechanisms be put in place that would not only provide greater equality of media coverage among the registered parties but also a better balance of the issues during an election campaign. As long as the mainstream media is able to decide which issues get discussed and which are ignored, the electoral system will continue to drift towards irrelevance and meaninglessness.
When important issues are ignored at the very time when Canadians are presented with their most important opportunity to meaningfully participate in our democratic system, we can only expect predictable and unhappy surprises.
I would be pleased to answer any questions.
The Chair: Thank you. We will hear from each of the witnesses and then go to a question period. We have 50 minutes to hear from each of you, as well as ask questions. I will ask you all to try to be as concise as possible.
Next, we will move to Mr. Figueroa, who, in a sense, is the reason we are here; it all goes back to the famous Figueroa decision. It will be interesting to hear what you have to say now that some time has passed.
Miguel Figueroa, Leader, Communist Party of Canada: Good morning. On behalf of our party, I would hike to thank the committee for inviting us and the other smaller parties to contribute to your review of this rather important legislation.
Senator Milne: Yes, for the second time.
Mr. Figueroa: I will not be presenting a formal brief this morning. I will be commenting briefly on certain aspects of the legislation and responding to any questions or comments that you may have.
As you are no doubt aware, our party appeared not only before this committee on May 5, 2004, but also in March before the House of Commons Standing Committee on Procedure and House Affairs to deal with this legislation. At that time, we indicated our support in principle for what was then Bill C-3. However, we raised a number of specific concerns and criticisms about certain aspects of the legislation. I would like to state from the outset that we continue to have such concerns and criticisms. It would be very useful if this committee, as part of its review, would reflect on these points and, perhaps, suggest certain changes to the act.
I want to go over the concerns and then proceed to general comments. First, I will speak to the increase from 150 to 250 signatures and the requirement for the re-registration of parties every three years. This was part of the new legislation package that was part of Bill C-3.
I think all of our parties have gone through this process twice over these past four years. There was an initial re- registration of all parties and then the second run-through was last year. From our point of view, it was doable. We managed to do it and will continue to do so. However, once again, we want to bring to your attention the fact that this question must be seen contextually in terms of the relevant sizes of parties. For the large, established parties the process is nothing; it is almost meaningless. However, it is onerous for smaller parties. This, together with many other aspects that have come together in terms of the overall Canada Elections Act requirements such as audits provides a number of disincentives that are obstacles and barriers to smaller parties. It must be seen in the context that not all parties start off equally. Some have more resources, others have larger memberships. The situation applies differently in different cases.
We also raise concerns to the changes of section 501 of the Canada Elections Act. This deals with penalties and, in particular, the deregistration of parties that fail to meet all the requirements under the act and even the seizure of assets. You will recall in the original Figueroa case coming out of the Justice Malloy's decision in 1999, the government changed and removed the reference to the seizure of assets. However, in 2004, Bill C-3 reduced the concept of the seizure of assets.
If you look at subsection 501(3), one of the grounds for the deregistration and even the seizure of the assets of a party can be something as simple as failing to provide a complete annual campaign return form. Everyone makes mistakes — big parties and small ones. We think this provides the Chief Electoral Officer to say with too much latitude to say, ``You screwed up so we will not only deregister you but also seize your assets.''
That needs to be amended to ensure that there is some substantiation of fraudulent intent. In other words, if it is clear that a party is violating these requirements on purpose and is acting in a clear and flagrant way, that is one thing and deregistration and maybe even seizure of assets is appropriate. However, given our own experience and having been one of the parties that actually went throughout seizure of assets, this action should not be taken lightly. It is important to build in protections there.
Finally, we still have concerns about the definition of a political party. Even though, in the past four years, it has not actually been applied, we still consider it a Damoclean sword over all parties but, in particular, smaller petitions. We have serious reservations about this. It is found in subsection 521(5) of the act. It states that the courts, interpreting whether a party is actually fulfilling as one of its fundamental purpose the filling of candidates, and so on. Paragraph (b) would look at the political program of parties such as press releases, et cetera. Paragraph (c) then states one of the grounds for the deregistration of a party would be any political statement in support of another political party. We think this is rather problematic. We indicated that in 2004 and it is still the case today. Many of our parties only field candidates in some ridings. The Green Party of Canada now fields in all 308 ridings — well done — however, many of the other small parties do not. Our members and supporters ask us, ``There are no candidates of your party running in this riding. Who should we support? Where should we park our vote?'' We are very public. At times we have said, ``Give critical support to this party. If there is no communist to vote for, vote here or there.''
Technically, under the terms of this legislation, this could be used as grounds to deregister the Communist Party of Canada. I do not think that is the intent of the legislators or the intent of this committee. However, it is a fact if you look at the legislation. This is problematic.
As you know, Mr. Kingsley and another witness who appeared recently before your committee have indicated the chief electoral officers have serious concerns about these aspects. They do not want to be in a position of having to make subjective judgments with respect to political parties.
I now want to make a few general comments. In 2004, both in the House and in the Senate, during the debate to May 13 — the final debate in the Senate on third reading — there was bitter resistance from some members of both Houses to this legislation. In both Houses there were attempts to say that if the Supreme Court says we cannot introduce or maintain this threshold, can we find some other threshold or barriers? We fundamentally disagree with that.
There was also an expression from others that said, ``We should not do it. However, the reason we should not is because, when we set up other barriers, these, too, could lead to litigation.'' There will be more challenges in the courts and with all due respect, we think that is not the right response.
We react indignantly to news about companies that produce defective products. It has been revealed that they do cost benefit analyses to decide whether to fix the problem or whether it would be cheaper to deal with a few challenges in the courts. In a certain sense it is analogous.
The Supreme Court spoke to certain fundamental questions about the broader perspective with regard to democracy and democratic participation. The issue here is to act proactively to take to heart what the Supreme Court and other courts in this country have indicated with respect to democratic participation and to remove discriminatory barriers against smaller parties. Unfortunately, this has not happened. There is a challenge, as you are well aware, with respect to Bill C-24, the party financing act. We are confident that we will win on that as well.
This is wasting the time, energy and money of our government and the Canadian people, and we appeal, once again, for the right thing to be done. I know this is not directly on point, but we did analyses over the last three elections, and they are very revealing with respect to party financing.
The Chair: We have that information.
Mr. Figueroa: We think there is a connection. You will notice that, although the number of smaller parties has increased marginally — in 2000 there were six smaller parties, in 2004 there were eight, and in 2006 there were ten — the votes they received have continually decreased. Therefore, although there are more parties, the impact they are having is diminishing. We would argue that one reason is Bill C-24 and the party financing act.
The Chair: It is not that this is not interesting. The problem is that it is interesting.
Ron Gray, Leader, Christian Heritage Party of Canada: I want to thank the committee for inviting us here. In the 13 years that I have been the leader of the Christian Heritage Party of Canada, the corresponding committee from the other place has never invited us to express our opinion on issues like this. I think that shows the importance of the Senate as a part of the institution of Parliament, and it shows the Senate's concern for broadening the scope of inquiry.
I have included in my printed remarks some extracts from the Figueroa decision highlighting some things that I thought were of particular importance. I will skip to page 3 and speak to my summary of what I think the Chief Justice was saying in her explication of the significance of section 3 of the Charter. She stressed two core principles that are not served in the Elections Act as it stands. One is the opportunity of the candidate to present ideas to the electorate. She spoke specifically to that. The other is the voter's right to be informed.
I have spoken at the broadcast arbitrators meeting and at the Chief Electoral Officers' Advisory Committee of Political Parties, and I have stressed repeatedly that the reason for this is that the focus of the House of Commons committee on elections and procedures has been wrong. They keep looking at the legislation with regard to how it will serve the interests of the various parties. That is not the right focus. The focus should be on the fact that a democracy absolutely requires a well-informed electorate and that voters have a need and an indefeasible right to have access to adequate information about all the options available to them.
Those needs are not and cannot be met in a kind of neo-Darwinian environment that leaves voters' access to information to the survival of the fittest at the hands of the media. That might be so if access to sources of information were on a level playing field, but freedom of the press cannot be regarded as a real freedom if it means that anyone has freedom of the press if they have the $10 million necessary to buy a printing press and distribution facilities. Freedom of the press cannot be regarded as served where the public broadcaster, as Mr. Graham has pointed out, ignores political parties whose points of view they do not agree with, or even mocks them. The voters' right to access to adequate information to make an informed decision is not served in that respect.
For those reasons, the CHP has, with the support of some of the other parties — none of the ones represented in the House at the moment — proposed a complete revision of the broadcast allocation and funding formulae because those are naked recipes for the preservation of the status quo. Whoever got the most votes last time gets the most money to campaign for re-election next time.
We have said, instead, that first, with regard to broadcast access, all registered federal parties ought to have equal access to the national media and all candidates ought to have equal access to local and regional media. This would mean that a party that runs a full slate of candidates would wind up with more time than a party like ours, which is only run in one fifth of the ridings. However, in each electoral contest the access of the public to information would be equal.
Similarly, we have suggested that Elections Canada ought to mount a website on which all parties have an equal amount of space and to which they would have equal access, and that Elections Canada publicize that web page with a message such as, ``Get all the information you need to cast an informed vote.''
In addition, this committee should be aware that, at the same time as the four parties now in the House of Commons voted themselves $30 million a year of taxpayers' money for their re-election campaigns, they severely constricted the ability of our parties to raise funds in any other way, as well as imposing the threshold that is currently under challenge. For example, all corporate donations were ruled illegal.
We have always argued that publicly traded corporations and unions should not be allowed to make political contributions because the managers of those resources who make the decisions may not represent the opinion of all the owners of those resources. However, privately held corporations and proprietorships should be allowed to make donations because the managers are the owners. Similarly, the maximum donation that an individual could make was cut from $5,000 to $1,100. That is a severe constriction of the capacity for fundraising.
Finally, I want to reiterate a quote of Thomas Jefferson. He said that it is tyrannical to compel a man to pay for the promulgation of ideas with which he does not agree. I, like many millions of pro-life Canadians, find it repugnant in the extreme that my taxes are given to parties whose policies deny this most fundamental right of all, the right to life, without which no other right can have any meaning at all. Yet, year after year my taxes are thus suborned.
For the past decade the CHP has proposed and we will continue to propose an alternative form of public financing of political parties, one that would not send a penny of my money or yours to any political party whose policies are anathema to us. We propose that the income tax form conclude with a box that states $2 or some preset amount of your taxes will be used to further the democratic political process in Canada. You, the taxpayer, may designate which registered political party will receive your $2. If no party is designated, your $2 will go to a non-partisan educational funding to teach school children and immigrants how our political system works. Thus, not a penny of any taxpayer's money would be given to any political party without that taxpayers expressed consent. In addition, this would allow taxpayers to give the various political parties a report card of sorts between elections on how they are doing.
One other item I would like to mention bears upon the funding issue. I have a candidate in British Columbia right now whose livelihood is being threatened because he has been a candidate for the Christian Heritage Party of Canada. His name is Mr. Chris Kempling. He is a Doctor of Psychology and he is also a school teacher. The British Columbia College of Teachers has threatened to lift his licence to teach because he has been a candidate for the Christian Heritage Party. There has never been a clearer violation of a citizen's section 3 Charter rights. If Mr. Kempling does not have those Charter rights, no Canadian has them.
Someone must defend section 3 Charter rights of all Canadians in this case. If we do so as the Christian Heritage Party, we are compelled to take the limited resources that the Elections Act allows us to raise and divert them into a legal process thus diminishing our political capacity. There should be a public defender of our Charter rights.
I have raised this at the Chief Electoral Officer's Advisory Committee of Political Parties. Mr. Mayrand has not indicated whether Elections Canada will take up this defence of Charter rights. However, members from one of the larger parties have said they do not think Elections Canada should. My question is: If not them, then who? There must be someone to file a suit asking for punitive damages in an amount that would deter any other employer or quasi- governmental body from impugning the section 3 Charter rights of any Canadian.
Anna Di Carlo, Secretary, Marxist-Leninist Party of Canada: The last time we were here was for the discussion of Bill C-16. As I was en route to Ottawa, I spent time reflecting that in Canada we now have fixed elections and we have spent the last three months sitting on the edge of our seats waiting to see if we will have an election. When we appeared, we raised the issue that the process of electoral reform has become so detached from any real problem in terms of how Canadians exercise their right to elect a government and to exercise control over their society. It is leading to increased cynicism and decreased political engagement. We think it is a serious problem that Canadians are losing faith in the institutions of governance to be able to effect changes. Bill C-16 has shown itself to be somewhat of a farce. Today, we also are facing a vote in Parliament where the two parties that call themselves the main parties are voting. We expect a resolution to support the continuation of the war in Afghanistan, although the vast majority of Canadians have shown they are opposed to this war.
We think it is a serious development when we have a situation where the majority of the population feels it is not being represented. We also are seeing the demise in the party system. Previously, it was a system where there was one party in power and another party in opposition. We are told you can punish them in the next election. That does not work any more. Increasingly, we feel we are losing ground in terms of being able to effect change in society.
I raise these items because it is important in the context of what we are looking at with the party registration provisions. The Figueroa ruling, in our opinion, was extremely important for various reasons. One is that it looked at the problem that exists in terms of individuals exercising their right to elect and to be elected within a system that is party dominated. The Ontario Court of Appeal ruled in favour of the 50- candidate threshold arguing that only those political parties that have a chance of forming a government can provide Canadians with a so-called clear and coherent political will. They should be the ones that have greater rights and if smaller parties cannot form a government, what is the point of having these rights?
The Supreme Court of Canada struck this down. It made a point of isolating that particular argument saying that rights belong to the individual. We think the problem we are dealing with is that the party dominated political system in Canada is the key obstacle to exercising our individual rights. It is a serious anomaly we have in the system and this brings us back to the issue of party registration.
I would like to make a further point in terms of the Supreme Court ruling that was issued in 2003. We think it is unacceptable that since that time, regardless of which party was in power, the government has not undertaken a serious review of this extremely important ruling. In 2004, correspondence went back and forth before the small parties filed the papers for the Charter challenge to the 2 per cent threshold for reimbursement. Press conferences issued statements saying the government would conduct a serious review of the broader repercussions of the Figueroa ruling. As you recall, the two-year sunset clause was issued. That was about to expire and at the last minute it was replaced with another two years to conduct the review. The Senate is having the review. Parliament has not even started.
The Chair: The House of Commons review has started.
Ms. Di Carlo: You are correct. I apologize.
We think this is not acceptable and shows contempt. From what we can see, most of the legislation remains based on the Ontario Court of Appeal ruling that legitimizes the concept of party government trumping individual rights.
We also have serious concerns about the violation of the right to freedom of association that we think remains a problem in the Canada Elections Act. It is presented in the name of protecting the public purse. Once a political party becomes registered it has to abdicate rights because it can then issue tax receipts, et cetera.
We think this points to the impossibility of the system that we now have in place. Superficially, it makes sense that if you are going to have state funds then you should be regulated. However, the kind of regulation is, ipso facto, a violation of political freedom and the right to freedom of association for any serious political party. For example, the provision that concerns us is that you cannot raise funds going to any kind of entity not embodied in the legislation under the Canada Elections Act. If you go back to the anti-apartheid era, we raised money to support the struggle against apartheid in South Africa. We believe it is part of valid political activity to raise money for various causes.
We would be breaking the law if our members wanted a fundraising campaign to support the anti-war movement or to support an organization fighting for democratic renewal, but not a political party. We think it is indicative of the quagmire that has been created by this party legislation. If you go back to 1970, the whole purpose was to introduce the system of public subsidization of political parties.
We think the solution to the problem is to end the public subsidization of political parties. The political process itself and not political parties should be funded.
Senator Stratton: It strikes me that all of the witnesses have been really talking about fair representation in Parliament. It always leads to the base issue of proportional representation; it is automatic, yet, I have not heard anyone talk about that this morning. However, we are talking about the bill. That issue of proportional representation is sitting there, unspoken. I think it needs to be talked about. We will not get it in my lifetime but, hopefully, in my children's lifetime. We need to keep pushing for that issue.
Yesterday, I raised the question of the minor parties, their success at the polls and being locked out of the media, et cetera. When you look at the history of the CCF and the NDP, they succeeded. They started with an idea and they succeeded. That was a while ago. Recently, the Reform Party out of the West started out as an idea. It then evolved into the Canadian Alliance Party and then merged with the Progressive Conservative Party. They did it and were successful because of ideas.
When you look at that, you must say the system works to a degree because we have two successful examples. I actually thought the allocation of funds was a decent way for minor parties to obtain money. For example, the Green Party of Canada is moving along and will become a force in our electoral system.
Do you not think the system, for the most part, works? You see three parties — one historic, one recent and one current — that are evolving into mainstream parties.
Do you not think the system works overall, based on that? Sorry for the dialogue. I think it is important.
Mr. Graham: There is a good book by Toby Smith called The Myth of Green Marketing in which he argues that the main parties are taking a lot of ideas, or at least rhetoric, from the Green Party. What we really need is a real paradigm shift. I do not think the present system is working in that context.
Mr. Figueroa: Senator, what is important is not whether a specific party or, historically, some parties have been able to surmount thresholds and obstacles and grow to become part of the mainstream, but whether such obstacles or thresholds are legitimate. By ``legitimate,'' I mean they have some sort of substantiation and objective basis insofar as they protect and advance the democratic process in the country.
This is one of the main points not only in the Justice Malloy decision but also in the Supreme Court of Canada decision to say that the issue is not whether some parties could do it. The transcripts of the Supreme Court of Canada hearings were interesting. Either Justice Iacobucci or one of the Supreme Court of Canada justices raised the question: ``How does the 50-candidate rule apply if almost everyone in Prince Edward Island wanted to have a federal expression of their concerns as Islanders such as we have with the Bloc Québécois in Quebec? How could they even become a registered party? There are only four seats there.'' The Attorney General's response was that it was okay because Islanders who live in other parts of the country could be asked to run. The justices asked how in the world would that help to strengthen the integrity of the political process to force parties, if they wanted to become registered, to run candidates in other jurisdictions even though it has nothing to do with it.
That is the point. It is not so much a question of whether certain parties have been able to overcome those obstacles but whether or not there is some sort of objective basis for those obstacles. Here, the point does not only have to do with administrative barriers but also financial barriers. That is why we think that the party financing act is just as problematic as the previous obstacles. That is why we are fighting it and we are confident that we will win.
I was speaking with our lawyer for the joint case in which a number of our parties are involved. It could take another six months to find out if we are successful in seeking leave to appeal. We are confident we will be given leave to appeal. It will then be another year for the ruling and another year for the legislation. This is dragging on and on. We think that is problematic.
Mr. Gray: My dad was a supporter of the CCF for many years. He dropped out when they became the NDP. However, back in those days, holding meetings and passing a hat around could raise what were relatively small amounts of money but with very large effect. When it became the NDP, they gained access to union funding which was very substantial. The Reform Party, which contested its first election in 1988 the same as we did, did not elect anyone. In the by-election the next year, the oil patch in Calgary dumped something that has been estimated at about $2 million into that campaign.
Those things are no longer accessible to the smaller parties. The four parties that are now in the House of Commons have worked very diligently to pull up the draw-bridge behind them and exclude new parties and new ideas. That is simply the fact of where we are today.
Ms. Di Carlo: Some of the points have already been made but it is certainly a different time in terms of political parties being able to move.
I can think of several parties that could not do now what they did then to get off the ground in the current situation. This measure of whether or not a political party can make it is one of the examples that I am trying to get across in terms of our concern. What does that have to do with whether or not Canadians are closer to the self-governing aim that we are supposed to be celebrating 250 years of? Does another party becoming the darling of the media change anything in terms of the way we can change things in this country to make ordinary Canadians feel that they are part of this political process?
I know that it is illegal to raise more than $1,000. You could take a bank loan or raise a huge amount of money before you become a registered party, but that is certainly not the concern of Canadians. The concern is whether we can have another successful political party in Canada.
Senator Stratton: Thank you very much for this document. I would refer you to what happened to the popular vote of the Green Party of Canada in the 2004 and 2006 elections. It is happening.
Senator Merchant: Welcome and thank you for your very thoughtful and analytical presentations.
One of our guests yesterday reminded us that we have not always had parties in Canada, and now we are in the position of having to deal with the word ``party.''
Do you think that historical presence or international resonance is helpful? I understand that there is a green party in many places in the world. When people hear the term ``Marxist-Leninist,'' they know exactly what it means. I think it is helpful for Canadians to understand what parties you represent.
In the Figueroa case, the court said that 50 is too high a threshold for registration as a party and sent it back to us to figure out the appropriate threshold. Do you think that a lot of work and thought went into coming up with the number one? Someone suggested yesterday that the number two might be a more appropriate number because there are independents that do not belong to any party.
You said that you want participation from all Canadians. Mr. Gray's idea that Canadians indicate what party they want to support is a good one. However, sometimes it is very difficult. If there are a lot of parties, say 25 or 50, it would be very difficult to know what each party stands for. There are many single-issue parties, and I am not sure that we know exactly what issues they stand for.
Mr. Gray: The issue of how many candidates a party should have in order to constitute a party is interesting, because a group of people do come together to choose a candidate and they are, therefore, in that sense, a party. One can be a party. One becomes an independent if one does not have the endorsement of a registered party.
On the question of how many parties there might be, we have come very close to peaking at 16. We hovered around that level for a while, in part because of the requirement for 250 members to sign up and re-register every three years.
The question of what a party represents goes to the heart of the question of voter access to information, which I have been stressing. In the present legislation we have no measure to enhance voter access to information about the various options being presented. That is why I keep stressing this change of focus. Let us not talk about what the legislation does for the parties; let us talk about giving the voters adequate access to the information they need to make a decision about the options available to them. That is of key importance in this. Financing and funding can contribute to that, but there must be access to information about what each party stands for.
There is a registered party now that calls itself the NeoRhino Party. I have met them and I am not sure of their policy orientation, except to make fun of the process, or to have fun with the process. They might state it either way. The Marijuana Party clearly has only one policy objective. The public cannot know these things unless there is a place they can go where the various parties can provide an explication of their full policy range. Right now, that place does not exist.
Mr. Graham: Although we are polling quite high and growing all the time, whenever we have a riding where we have a reasonable chance of electing someone, you can bet your bottom dollar that every other party will pull out their big guns to ensure that we do not get that seat. We saw that in London-North-Centre and have seen it in other ridings. Even though we are polling quite high, we still do not have a seat. To be honest, I think it will be pretty tough for us to get one, and I do not think that serves the interest of Canadians very well.
Senator Joyal: My first question is on the principle enshrined in section 3 the Charter, which I will read for the sake of the record. It is under the title ``Democratic Rights'':
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
Mr. Gray has properly stated the implications of the reading of the Supreme Court on that section of the Charter. Both here and in the House of Commons, I have stated that I think that the interpretation given to the subsidies system established under the legislation is unconstitutional, and that is blatant in these figures. You do not see the proportionality of the principle of excluding it for the amount of money involved.
I hope you win in the courts, because I think it is a sound principle. A vote is a vote, and each vote has the same value regardless of whether it is for the Green Party, the Marxist-Leninist Party, the Liberal Party, the Conservative Party et cetera. I think this principle will be recognized and maintained by the court.
On allocation of time, there is another element that the court might want to appraise. I am not sure that I would win such a case if I were your attorney, but I will make my proposition. I think we all agree that it is now easy to become a political party. You need only one member and 250 signatures, so the conditions are easy to meet. It is easy for any group to transform itself into a party and request access to air time. They really want to change from being an interest group to a party, which creates a completely different element in the system.
As much as I am convinced that you are right on the issue of the threshold and access to financing, I am still wrestling with the other issue. I am being very candid with you because I always think that we should make it easy for Canadians to have access to diversity of opinion.
I heard both of you, Mr. Gray and Ms. Di Carlo, on this subject. Have you reflected on the implications?
Ms. Di Carlo: First, I would not agree that it is easy to be a political party in Canada. In fact, the figures that Mr. Mayrand brought showed there were 12 political parties that were unable to succeed for whatever reasons, even in terms of the basic requirements. In my view, you must be very serious to become a political party and to sustain it in Canada. It takes real determination and conviction. It is not something people take up lightly. In terms of the so-called benefits you might accrue, even if the time were allocated in broadcasting, I can think of a million better ways if you want to get an easy ride. Canadians take politics seriously in my opinion. I do not think it would be easy to gets 250 people to sign a sworn declaration that they would support the registration of a political party that is not real. I think it is a bogey man.
On the court ruling, they say there is a scarcity of resources. I understand the way the argument is posed, but sooner or later it will have to be cracked. The violation of the rights of Canadians to an informed vote is becoming scandalous. For example, take the issue where the Green Party of Canada fields 308 candidates and is not able to say it is equal. I do not want to offend anyone, but it is arrogance. It is this holier than thou attitude that someone in government and in big media can decide who should be heard. It harkens back to a time in the 18th century.
Mr. Gray: I am aware of a man in the Toronto area who runs in every election — federal, provincial and municipal — because it gives him an opportunity to put his name out on signs and promotes his software business. However, he has not become a political party precisely because it is not easy and it is not easy to maintain. Remember that we must go through audit procedures that are onerous for smaller parties. The possibility of frivolous abuse will always be there. No system we put in place that will be foolproof. However, as Ms. Di Carlo has said, 12 eligible parties fell by the wayside because they could not meet the thresholds that exist. That shows the thresholds are probably rather impermeable now.
Mr. Figueroa: On these points, we took the position from the start that either one or two candidates as a threshold would be appropriate. We say two because it is more than one and therefore shows it is a collective effort as opposed to a single candidate. However, we would certainly go no higher than that.
I think the courts essentially agreed with that view. That is why I think the reading of the Supreme Court judgment by the government in 2004 was accurate. That is why the proposal came forward for one candidate and not 12 or 15 or 49. Concerns that the floodgate would open wide and there would be a proliferation of applications for new parties has been shown not to hold water. Although it is only four years down the road, there has not been a massive increase.
Would it be so bad to have 20 or 25 parties? Many other countries have large numbers of parties and yet the people manage to get through it rather well. We are familiar with the argument of limited broadcasting resources, especially with respect to air time. That is an issue. At the same time, we think how airtime is divided is problematic. The largest parties get the bulk of free air time through the mass media in general. They also have all of the resources to buy broadcast time thanks to the party financing act.
Mr. Gray suggested the establishment of a government website that would provide, on an equitable basis, information from all parties for the benefit of all voters. That does not challenge resources. Why is that not done? Why should it not be done?
Mr. Graham: Our democracy will work better if Canadians are more sophisticated and discerning in their consumption of media. Therefore, how do you make Canadians more sophisticated consumers of media? Would it be by giving them a smaller spectrum of media coverage or a larger spectrum? I suggest that it would be by giving them a larger spectrum. At least Canadians would go through the exercise of sorting through that information and I think our democracy would be improved, not diminished.
Senator Oliver: The Chief Electoral Officer was here on March 5. He said that these amendments have been in place for four years now. They were brought in following your case before the courts to give smaller parties a more equal opportunity to get their message out, et cetera. Administratively, he and his associates think things seem to be working well.
I have heard the four of you say today that it is a slight improvement. However, it is still onerous to get the 250 signatories to the declaration and that even the definition of ``political party'' can be difficult.
If I am correct in stating your views, are you suggesting to this committee that you would like to see changes in the 250 signatories or the one candidate or the other changes that were made following the court's decision? If so, what changes would you like to put before this committee?
Mr. Gray: I do not have difficulty with the requirement for 250 signatures, but the difficulty occurs in some of the reporting and audit requirements.
Senator Oliver: They have been there for some time.
Mr. Gray: Yes, but they are required for very small expenditures. There is virtually no minimum threshold. You must go through the same onerous procedure of audit. For example, even if you only put a candidate's name on the ballot as the Green Party did in a number of ridings and there is no advertising or expenditure, we are required to do the same audit.
Also, the burdens that have been placed on our official agents have increased year by year. A couple of years ago I told Mr. Kingsley from Elections Canada that if his office was going to add more burdens to our official agents, to please put them on his payroll. I asked him to provide us with people to be our official agents because we cannot recruit them easily. No one who has done it once will do it a second time unless they are either very devoted or masochistic.
Ms. Di Carlo: On the Advisory Committee of Political Parties is a Liberal member who is a lawyer. He cracks jokes about how much money he has made in terms of the hassles all the political parties have in meeting the legislative requirements. If you file your return late, you must appear before a judge, even if it is only one day late.
The point Mr. Gray is making is very important. Even though you may have a nil return at the end of election, you are faced with all this paperwork. We currently have a candidate being audited for $4, if you can conceptualize the correspondence for $4 to close a bank account in which he had no money.
Senator Joyal: Of course, you do not receive any money from the government.
Ms. Di Carlo: It has created a monster. With each amendment come more issues and repercussions. Each party has been caught in these problems. Look at the problems the two parties have had with their conventions and auctions. No one put it into the legislation to be nasty, however that is the way it is.
Mr. Figueroa: We have made specific references to this piece of legislation. In our brief of which copies were turned over to the clerk of the committee, we talked about section 521 and 501 of the act. We have specific recommendations for those sections.
The 250 members, by the way, are not just those who support the registration of the party. They have to be official members of the party and so on. We are not calling for the number to be reduced to 100. We can live with the 250. However, we want to make it very clear that any attempt to increase that number would raise the administrative threshold — just like the 50-candidate rule — and would provoke a challenge. I strongly urge the committee not to look toward that. That is why I made the emphasis on taking to heart the real message of inclusiveness in democracy from the Supreme Court ruling.
I want to make a quick point: Canadians want more diversity and options. A much smaller percentage of Canadians think there are already too many choices; they want fewer options. It is important for legislators to take that to heart.
The Chair: Do you want to respond, Mr. Graham?
Mr. Graham: I basically agree. I think there is an awful lot of paperwork and hoops to jump through that do not serve a useful purpose.
Senator Oliver: I have heard Mr. Gray say on many occasions that he wants the candidates to have the opportunity to present ideas to the electorate and the voters have a right to be informed.
I think we have one of the best communications systems backed by our Charter. There are several ways to communicate your message to the people via radio, TV, newspapers, periodicals, Internet or by mail. It is hard to think of any other countries where it is easier to get your message out to people.
Do you not agree with me that it is easy to allow the voter the right to be informed and that it is easy for you to inform the voter?
Mr. Gray: I would agree the media exists but access to the media is extremely limited, particularly for the smaller parties.
Senator Oliver: What about the Internet?
Mr. Gray: The Internet has been a godsend. It has opened up a great many opportunities and we are attempting to use it. However, the other media are becoming increasingly expensive combined with the legislation that is before you have constricted our ability to raise funds. We do not have the resources with which to buy time in the other media, which still remain the main channel of communication for most Canadians.
Senator Milne: How big should a party be if it does not have 50 members? Is there any cut-off point between one and 50? We heard yesterday from one of the parties that perhaps it should be the union parlance ``one is an individual, two is a party.''
Ms. Di Carlo: Simply because a political party fields one or 50 candidates does not necessarily have anything to do with their size. We are talking about being registered and being able to have your name on the ballot as a political party. If you are fielding one candidate, if you have a political party for that candidate, why should they not have their name on the ballot? Theoretically the Liberal Party could declare it will protest the system and run one candidate. They are still a political party.
Mr. Gray: I would not object at all if the legislation were to require two members and say that one person is an independent because then you have more than one candidate who wants to wear the same label and advance the same policies. That kind of limitation would not bother me at all.
There is another element that I think ought also to be raised: Once a party has gone through the process of becoming registered, is a registered federal political party and is recognized as such, why do we have to go out and raise 100 signatures in a riding in order to field a candidate there? Why cannot that party say, ``We decide to choose a candidate? We are a party and registered.'' Why do we have to go through the exercise of standing out in the rain in front of a shopping mall and approach 100 people for permission to run a candidate? We are already a party.
Mr. Graham: I do not know if the Green Party has a position on your specific question. I do not have the capacity to make up on the fly. However, I think that two would be consistent with the principles of the Green Party.
Senator Milne: Thank you. My last question is in regards to Ms. Di Carlo being the first representative of a party that we have before us who said the federal government should not fund parties at all. Mr. Figueroa, you suggested in this very good little chart that you have given us that perhaps subsection 435.01(1) should be amended to remove the vote threshold of 2 per cent overall or 5 per cent in a riding in order to get funding.
Where do the other two witnesses stand on that issue?
Mr. Gray: I stand with Thomas Jefferson who said that it is tyrannical to compel someone to pay for the promulgation of ideas with which he or she does not agree. I object to my taxes being polled and sent off to parties. If some of my taxes are going to go with a party, I want to the right to say who gets it.
Mr. Graham: I think it should be equal for all registered parties.
Mr. Figueroa: I want to clarify our position. The position we took when Bill C-20 was introduced and I appeared at the House of Commons committee on that legislation, we indicated that we were actually opposed to public financing of parties. However, if it was going to be done, it had to be done on the basis of not providing privilege to some parties and withholding it from others. We opposed the threshold and we continue to do so through this court challenge. We also oppose in particular the opposition to the funding of parties by trade unions. We see a big difference between trade unions and Bay Street corporations. Trade unions have conventions. They have to answer every two years to their members. It is true that you may have to answer to your shareholders, but your shareholders could probably fit in this room, except for those of large publicly-traded companies. Many private companies have tremendous resources and are accountable to virtually no one, but trade unions have democratic structures. They have to have conventions where they can be voted out, policies can be overturned and so on. We think it was an attempt to weaken labour's involvement in the political process and we are fundamentally opposed to any attempt of that kind.
Nelson Wiseman, Associate Professor, Department of Political Studies, University of Toronto, as an individual: Honourable senators, I want to thank you for thinking I can contribute to your deliberations. I want to thank Mireille Aubé for forwarding the comments of the Chief Electoral Officer, and I want to apologize for not being able to speak in Canada's other official language.
When I appeared before your committee in 2004, I was highly critical of the Figueroa decision and anxious about its implications. I derided the court's rationale for undoing the old party registration regime based on what the court termed ``meaningful participation.'' The term strikes me as a platitude. It is an elastic phrase that may be stretched quite far.
I was concerned about potential abuse of the tax system, the provision of potential public subsidies and services to parties whose objectives are essentially non-political, and the proliferation of registered parties, which would confound voters and undermine the integrity of the electoral system.
I recalled the Natural Law Party, which ran 251 candidates in the 295 constituencies in 1993. It spent $3.4 million and garnered less than 2 per cent of the vote. The party seems to have disappeared as quickly as it arose. Whatever it was trying to accomplish by using the electoral system — presumably the fostering of transcendental meditation, yogic flying and changing the positioning of the front door of Parliament — it was not successful.
Let us remember that parties are essentially voluntary organizations, and if a larger party enjoys advantages over a smaller one, it is by virtue of its larger voluntary base in terms of members and contributions. I am happy to report that despite my misgivings, the new regime seems to have worked. Therefore, although I cannot comment on the implications for the tax system in terms of tax deductible contributions receipts issued by small parties, my concerns about registration and proliferation of parties have not developed.
The impact of the new regime appears to have been minimal. There were 14 registered parties in 1993, 9 in 1997, 11 in 2000 and 15 in 2006, and now I understand that there are 16 registered parties. Therefore, we are back to where we were in 1993 before the court ruling.
I am concerned, however, that the current requirements for registration and for the electoral system generally may continue to be assaulted and potentially undone by the courts. I will give a couple of examples.
The current regime requires that the 250 electors who are party members must provide their addresses. There is a case before the British Columbia Supreme Court challenging the federal voter identification requirement law, which was passed last year. That law requires a citizen to provide identification with an address. This action, launched by individuals and groups representing the homeless, university students, Aboriginals and seniors, if successful, will undermine the registration requirements and the Chief Electoral Officer's ability to ascertain who these 250 party members are, since there will be no way of contacting them if they fail to provide an address.
I also envisage potential assaults on the press coverage of parties and elections as denying what the court called meaningful participation. That was the essential message I got from the contributions this morning, and I am willing to respond to some of the comments they made, which I found illuminating, as I did the information they brought to bear.
While the Charter of Rights applies only to government laws and institutions, and one such institution is the CBC. Although I am not a lawyer, but rather a political scientist, I believe it is conceivable that a party with a single candidate could insist on participating in a televised leaders' debate on the grounds that, without access, he or she is denied meaningful participation in the election. If such a challenge is successful, it will probably lead to the end of televised leaders' debates insofar as CBC is concerned.
I am certain that the four major parties would not participate in a leaders' debate involving all 16 or more registered parties. This occurred in 2000 when CBC invited the leaders of all 11 registered parties to participate. The leaders of the five parliamentary parties all boycotted that debate. In the end, the six smaller non-parliamentary parties, some of whom you have heard from today, participated, and a separate debate of the leaders of the five major parties was broadcast. Many people watched that broadcast; very few people watched the broadcast of the smaller parties. Viewership was so low that, to my knowledge, no such televised debate of the smaller party leaders has taken place since then because of insufficient public interest.
I do not believe that registered parties should have regional requirements imposed on them in terms of where candidates run or in terms of where their 250 members come from. If all party members come from one riding, that is fine according to the court's ruling, and I think we must accept that. If they only nominate one candidate that is fine as well, although it makes a mockery of the idea that they are participating meaningfully in a national election.
I wholeheartedly agree with the Chief Electoral Officer that his office, or that of the Commissioner of Canadian Elections, ought not to be in the business of defining what constitutes public affairs. Similarly, the Chief Electoral Officer ought not to be reviewing the constitutions of parties or tracking their activities via the press. It is very important that the Chief Electoral Officer not be put in a position of making subjective political judgments.
I also do not think that it should be the Chief Electoral Officer's job to be proactive in informing the public via public education campaigns about the party registration requirements or the platforms of parties, as the spokespeople suggested for the CEO's website. I do not think the Chief Electoral Officer should be in the business of promoting the promotion of new parties.
I return to the point that parties are voluntary organizations and associations. Government ought not to induce or encourage their formation and similarly, although you might object to this, I do not think government should be in the business of inducing people to vote. It is the elector's right not to vote in our country, under the current law.
I agree with Senator Di Nino's concerns regarding potential abuses, such as groups or individuals using the registration regime to promote non-political causes from transcendental meditation to chiropractic services to selling real estate or some other product. Parliament must be vigilant that the rules for accessing tax dollars via party subsidies and tax receipts are not abused.
Another potential danger to the current registration regime is that the same 250 electors could create multiple parties in an attempt to discredit or ``frivolize'' the electoral system. I am thinking of Rick Mercer. An entertainer such as a comedian or television personality whose objective is to gain publicity for his career could encourage such a tactic. He could get the same 250 people to form 250 parties by signing each other's forms. Think back a few years to when Mr. Mercer got hundreds of thousands of Canadians to have a referendum on Stockwell Day changing his name to Doris Day. This is a nefarious device, but it could potentially undermine the probity of the electoral system. There are jokers out there.
I continue to lament the role of the courts and the undoing and reworking of the electoral regime that I think has served Canadians well, which has been looked to by many states abroad as fair, democratic, transparent and accessible. Nevertheless, the damage I anticipated from the Figueroa decision has not been significant to date and I would not propose further legislative changes.
In this respect, rather than citing Jefferson, let me paraphrase someone who has influenced our Constitution — Edmund Burke, who said that if it is not necessary to change, it is necessary not to change. While it is the obligation of the courts to remedy the violation of the rights of individuals, it is the duty of Parliament to maintain and safeguard the integrity of the electoral system. I do not believe that the registration requirements have either contributed to or taken away from Canada's reputation as a vital and vigorous democracy. I believe that the public perceives the electoral system and its administration as politically neutral, and it is important that the neutrality be preserved.
Senator Andreychuk: Professor Wiseman, when we were originally studying this bill, the neutrality of the Chief Electoral Officer was my preoccupation and that of other committee members. As you said, despite our concerns, it seems that has not been a problem. While many other issues have been raised, the main concern was really about neutrality.
All the ways in which we imagined that the process might have been abused appear not to have come to fruition. We have 16 registered parties. They may struggle with complying with some of the regulations, but they are not that onerous, and they are not abused.
Can we maintain the proper balance by continuing the present regime? I am not troubled by the thought that someone may wish to abuse the system, because if someone defines a policy issue, which is what we do in a democracy, and can convince others that it is sufficiently important policy issue, then they can use the system as a tool.
We heard from a party yesterday that said it was really an advocacy group but found it could not get third-party advertising in that way so it went the political route. That group is finding merit in being a political party. It all seems to me to be in the span of democracy.
Do you still believe that the abuses will probably not occur because other parties will be vigilant to find out what is going on in the system? In other words, if we move away from what we have done in the last two or three years, someone will point it out — the press, another political party or an academic. Do we have sufficient scrutiny to ensure that we do not go off the rails?
Mr. Wiseman: I did not benefit from the comments of the Liberal Party or the NDP spokespeople who I understand were here yesterday. So far, we have not gone off the rails. I see potential for abuse, which is the job of creative political thinkers. Some of the problems I envisaged have not developed. We still can have problems, but in light of court's ruling in Figueroa I think we are in a straitjacket to some extent.
I am uncomfortable with the continual lowering of thresholds and expanding of access in certain ways. I was very interested in Mr. Gray's comment, which I found earnest and well formed. However, we have a potential clash between the right to vote, which I think the courts have been too liberal in interpreting, and freedom of the press. If the next step is to compel our media to give every registered party equal time, this does not contribute to the functioning of our democracy. It brings the state into the role of controlling and supervising the media about which I am very uncomfortable.
We have made the assumption that money buys elections. We also know that under the law, before the registration regime was undone, you needed money to broadcast. However, you were only entitled to so much free time by the stations. This is still the situation.
In the 1993 election, the Conservative Party had more access to broadcasting time than any party in the country. They spent more money than any other party in the country. They won two seats as a result. The Reform Party came out of the blue. I agree with Senator Stratton and in addition to the CCF, NDP and Reform Party, we could also add to your list the Progressive Party, the Bloc and the Social Credit Party. These parties arose not because they were under the wing of government or the courts but because there was a popular base for them.
The Communist Party of Canada elected someone to Parliament in 1943. They elected people to our provincial parliaments. They did not do this because the state was accommodating their interests or because the media was any more sympathetic to them then. Indeed, the assault on the media by the Green Party of Canada was quite interesting. I enjoyed their comments; I am contrarian by nature.
On election day in Ontario last October, every party was given equal space in The Toronto Star. The photo of the Green Party of Canada leader was there. I have never seen so much coverage for the Green Party of Canada in the last federal election or in the Ontario election. They did not do too badly in the Ontario election; in the federal election they still received less than 5 per cent.
Believing in democracy does not mean that you must deal equally with every group. Let us have the free expression of ideas. Certain parties are more popular than others and that reflects what the public wants. If the public were more interested in these minor parties, it would have been revealed in the televised leaders' debates of the minor parties.
Senator Milne: Professor, I wish to ask you the same questions I asked all the political parties. It has to do with the size of a party. Is one too small? Having gone down to one from 50 because of the Figueroa decision, is one too small?
We heard from one of the parties yesterday that one candidate is an individual or an independent and two could make a party.
Mr. Wiseman: We must live with the court's decision.
Senator Milne: The court did not suggest how many. They just said 50 were too many.
Mr. Wiseman: However, I thought they also said no threshold was acceptable.
The Chair: No, I do not think so.
Senator Joyal: It was not as absolute as that.
Mr. Wiseman: My understanding is that is how the Chief Electoral Officer at that time interpreted it.
Senator Joyal: Yes, that is it.
Mr. Wiseman: On his advice, that is how Parliament acted.
I think there is a danger here that raising it to five or ten, which I do not think is a significant legislative change, it will lead us back to the courts.
When I was here four years ago, I recall Mr. Figueroa saying that it did not matter what Parliament did, he would just keep challenging these laws. That was reaffirmed; I learned more information today.
I am surprised with what we have done with this very simple principle. I do not think the fathers of the Charter thought the right to vote, as a democratic right, would end up in the courts in such a broad, interpretive way.
I was perfectly comfortable with the role of 50. I thought Canadians had plenty of choice and I thought parties not registered could still have their impact. When we go to vote, everyone here is assuming that you are going there and you are voting for party. The largest names on the ballots are for candidates. Until 1974, no parties' names appeared on the ballot. It was out of concern for clarity. In the 1960s, the Barbeau commission, concerning election finance legislation, worked on the concept that, if we were to have some control, we had to know who the leader is and whether someone is the genuine candidate. Many of you have been active in politics and you know you can have competing Liberal nomination candidates. ``I am the candidate. No, I am the candidate.'' We could not have that. Who will be able to issue the receipts?
It seemed to me that the number 50 was perfectly reasonable. Given the court's decision, they can undo — but they cannot get there — Parliament's decision that you need 12 to be a recognized party.
I did not like the idea of going down to one. However, in light of the fact we only have 16 and I do not think we can change it, I say, ``So far, so good.'' I take the Chief Electoral Officer's word for it.
Senator Milne: What is your view on public funding? We heard this morning for the first time that one of the parties would prefer no public funding whatsoever. Mr. Figueroa suggested that section 435.01(1) be amended to remove the vote threshold of 2 per cent overall or 5 per cent in a riding to receive public funding.
Mr. Wiseman: If we move toward no public funding, then we are in danger of the American system and the small parties who start complaining that the large parties are buying elections. We heard mixed messages today from the smaller parties. Some, such as the Green Party, are saying they do not have access because the large parties bring in their big guns and their advertising and they can overwhelm them.
We have been expanding the public subsidy regime and now restricting voluntary contributions. Money is like grease in politics: The accountants, lawyers and party strategists of whatever regime you put in place will have ways to get around it. Was not the Liberal Party thinking of having an auction a few weeks ago? There was discussion about whether such an auction violated the law.
I think this dilemma exists in every democracy. I do not think we should move to no public funding. However, I am concerned about continuing to tax the public treasury. While these parties are talking about how they are not getting equal access and how much it is costing them to provide audited statements, look at what it has cost the country to run the Chief Electoral Officer's office over the last 20 or 30 years. It has grown dramatically because the office must have auditors. It was not that long ago that we had a Commissioner of Canadian Elections. I am still not sure what that office does. We did not have visual identification bills and the address requirement. We are building up this huge bureaucracy around voting and procedure. It is not clear to me that we have had palpable fraud in the last 30 or 40 years, although we did have much more in the 19th Century.
The system seems to have served us well. One of the indicators of that is looking comparatively. I notice that countries abroad are coming to our Chief Electoral Officer to ask us to help administer this or that election. In Iraq, Namibia or the Ukraine, they ask, ``What do you do in Canada?'' We are seen abroad as a model for others. We are spending more time trying to tear down our own system to ensure we are accommodating and fair.
However, the reality is these parties are small because there is not much public support for them. When I hear that the Green Party of Canada was derided because you must be a martyr to run for the Green Party of Canada, I think of the comments made against larger parties. There have been more derogatory comments in the media about the Prime Minister and the Leader of the Opposition than there are about the Green Party of Canada, a party that in my opinion, the media is hesitant to attack.
Senator Joyal: Professor, I enjoy your articles in The Hill Times, especially when you deal with the Senate; however, that is not the issue this morning.
You seem to make a distinction between what you consider a serious party and a less serious party. You mentioned the Marijuana Party, or what they call the ``Pot Party,'' for the sake of publicity — and another party that might advocate another public cause that, in your mind, would be more acceptable, such as a pro-life party.
In terms of fairness, it is difficult to establish a distinction based on the merit of the party. Once you start defining a political party, it becomes a risk that those who will apply the criteria of the definition will be subjective.
It seems to me to be a fair approach in the context of the possible proliferation to grant to the commissioner, who has more of a quasi-judicial function, the responsibility to hear the challenges when the Chief Electoral Officer has concluded that a party should be deregistered for X, Y or Z reasons.
If the threat that you were expecting were to happen, and there would be a multiplication and we would have 60 parties in Canada, at that point perhaps the Chief Electoral Officer would have to scrutinize the criteria more thoroughly. In that event, then we should have a process in place to take that responsibility away from the Chief Electoral Officer so that he is not seen to be biased against a party, whatever the promotional objective of that party.
Do you not agree that, in maintaining the reliability of the system, taking into consideration that the regulation that we have now in place will call upon perhaps subjective judgment, we should have a legal process that is out of, or at least seen to be, the credibility of the system?
Mr. Wiseman: My understanding of the current system is simply that if a party gets 250 signatures, people provide their address, they provide a resolution that they have a leader, they meet these requirements every three years, they nominate a single candidate and declare that they are interested in public affairs, they then qualify. I am sorry if I conveyed the impression that I prefer larger parties to smaller parties.
I wish all the small parties well. I was a political organizer for what was a small party in Manitoba at one time, the NDP. It was a small party but it became a large party by winning more people over — and I am repeating itself — to its ideas and cause, and also partly due to the failings of the other parties.
Senator Joyal: And the union.
Mr. Wiseman: I thought there was some misinformation today. There were provisions in the CCF for union affiliation and for union funds. You may be surprised to hear that in the 1940s there were more union funds given to the CCF than there were in the 1950s. The parties that have led the NDP in Manitoba have discontinued union funding for the Manitoba NDP and did so before the federal legislation under Gary Doer.
Just as I did not assume that the Liberal Party was simply the party of corporations or the Conservative Party was simply the party of Bay Street before, the CCF-NDP was much more than the party of unions. It was a small party but it stood for other things, just as the Bloc Québécois, which I do not know that much about, represents a broad spectrum of issues.
I do not wish the small parties ill. We have a fairly open, democratic space. The Green Party has demonstrated that a party can gather support and its issues can gather attention. However, I do not like it being turned around that once established as a small party, the reason it is small is because there is assumed discrimination against it, which means that it must have the same access to television and the media as the large party. That would debase the electoral system and that is now the state dictating in a way that makes me uncomfortable. Let us have minimal rules. I like the definition the way it is written now. I do not work in this area all the time, as the Chief Electoral Officer does, or as you do, you give it much more attention.
Overall, I do observe elections; I follow them closely. I watch what is going on during election campaigns. I admire parties such as the Reform Party or the CCF and now the Green Party of Canada, which has gained support and built a constituency for its ideas, which get reinforced. However, the fact that many of these other parties are not doing that well is, in my opinion, more or less a function of public opinion.
Senator Joyal: I agree with you that a party will have success when it grows or promotes a message that runs parallel to where a large segment of public opinion lies. There is no question about the reality of the Green Party of Canada, or the environment, to put it in general terms. The broadest concept that we might want to put in the word ``environment'' is something that is in the air that was not in the air 30 years ago to the same extent.
I remember when the first environment department was created; it is not that long ago. A party that advocated the environment 50 years ago would have had a narrow base; today it is part of political public mainstream debate. We can understand that the Green Party will have some kind of support on a larger basis.
If you take a much smaller idea such as, for example, that of the Marijuana Party, you, especially being a political scientist, can define exactly where the supporters of such an idea lie and you can determine the trend of that party for a while. This is not a mystery. You are vested with the capacity of reading the evolution of political ideas. With all the small parties that are registered and have a life on their own, we can usually read their short-term future, unless public opinion turns around.
I am not concerned about your original fear about blocking the system and discrediting it, if the system, in its institutional decision-making, maintains the credibility of the decision and the criteria. As much as you raised the expectation of what could be a court decision in relation to the allocation of time, section 1 of the Charter is still there — the reasonable limit in a free and democratic society — and arguments can be put forward to say that at a certain point in time we must ensure fair access. That does not mean, as you correctly said, that everything must be equal.
There are conflicting freedoms at stake including freedom of expression, freedom of association, the right to vote, and so on. The court would balance all those rights and come to a decision.
The Chair: Perhaps we could have a question.
Senator Stratton: Two of us must leave in five minutes.
Senator Joyal: That is why your fear about the implication of allocation of time is not as absolute as what you have said.
Mr. Wiseman: Yes. We never know what the courts will rule. You are a lawyer; I am not. I thought section 1 would have been a perfectly reasonable fall-back in the original Figueroa case, but it did not stand up.
There was a case in Ontario this autumn that ruled on candidates' deposits being put down. The Green Party had raised these deposits. Section 1 did not work there. I do not know if section 1 will work on the requirements of addresses.
On the whole, I think politicians are better equipped. Our electoral laws have been fair. I had no problem with them before. They were more fair with the regime that we instituted in 1974; that is, before the Charter. I do not think they have been made fairer because of the Charter. What has resulted is more bureaucracy and more litigation all around the law. When I look at the output, it has not been all that different.
I find it interesting that the Communist Party of Canada, which historically has spent time denouncing the courts as agents of the bourgeoisie and the corporate classes, is now spending its time on court decisions rather than building alliances and solidarity with the working class.
Senator Stratton: Hear, hear.
Senator Merchant: My question is peripheral. There was a genuine attempt throughout the presentations for meaningful discourse, but we hear statements that different parties make. One person said that meaningful participation means peace, order and good government. You told us that other countries are coming to us because they view that we have good government in this country, and they are coming to learn from us. We want to go out and teach other people how to run their democracies. We also heard this morning that the more parties that are created, the better. We have heard there are many countries where there are many parties and they work well. You study these things as a political scientist. I am talking about good government and good democratic government. Can you give us examples of countries that have many parties in their legislatures that work better than our government works?
Mr. Wiseman: Let us differentiate between legislative parties and parties. Professor Louis Massicotte from the University of Montreal who has studied many countries mentioned Britain, and other countries have all kinds of parties, but we only know of three or four in their Parliament. Let me preface that. You began with, ``peace, order and good government.'' I was surprised to hear it at first, too. I thought, what is the linkage between peace, order and good government and meaningful participation? Where do peace, order and good government appear in our Constitution? It is in the preamble to section 91, which spells out the federal powers. The last thing it talks about is the electoral regime. It is a phrase that is also elastic. We saw how the courts used it to reinforce provincial power. Whether you think that was good or bad is a separate issue. I think peace, order and good government have nothing to do with meaningful participation. I do not like phrases like ``meaningful participation,'' because I want to be able to measure it. Does it mean 15, 20 or 10? Like the word ``reasonable'' which appears in section 1 of the Charter, we turn to judges for a definition.
Let me get to the substance of your question, which is: Do things work well in other countries with many parties in their Parliament? It depends; generally, not as well. In Italy, we have had two or three referenda in the fast few years. People want to move away from proportional representation and they want a system more like ours, because they do not like the deadlock. In Israel, the problem has been where they have 12 or 17 parties in Parliament. Their barrier has been 1.5 per cent. In New Zealand — and in Germany especially — the system seems to have worked well. Their threshold is 5 per cent. In New Zealand it is 5 per cent. There was a lot of cynicism in New Zealand after the first election, but they are now learning how to work with the system.
More important than the rules in any society is the underlying political culture. We are blessed in this country and our history that we have a strong civil society. We have the rule of law, there is an appreciation of it and we have power for various institutions. The media are free. Things have worked out.
Other countries, as well — in their own way — work it out. I do not completely want to dismiss the Israeli or Italian cases, but many people in those countries are frustrated with their system. People in our country are frustrated with our system. We heard talk about cynicism, although I noticed in the last federal election voter turn-out went up. Overall, in our country public opinion does not perceive a major problem with the electoral system.
It is true, as Mr. Figueroa has said, that public opinion surveys say people want more options. People will always say that in a survey. Rather than relying on what people say in surveys, I prefer to rely on how people actually behave. I know that one of the reasons the media invited all of those party leaders to the debate was because the Royal Commission on Electoral Reform and Party Financing, provided data that showed that people thought there was not sufficient fair attention to small parties. The CBC Newsworld broadcast the debate, but people did not want to watch it. People will say, yes, we should be fair. Do I want to watch it? No, I am not interested. That is the reality.
The Chair: Thank you very much indeed, Professor Wiseman, for the enlightening and stimulating points that you made. They were very helpful.
We have one other small item of business. We are losing bipartisan representation at this point, so we will postpone the small piece of other business until we meet in three weeks.
I thank all concerned and I wish everyone, in particular the interpreters, reporters and other staff, a very Happy Easter.
The committee adjourned.