Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17 - Eleventh Report of the Committee
Thursday, May 8, 2008
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to table its
ELEVENTH REPORT
Your Committee, which was authorized by the Senate on Thursday, February 28, 2008, 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), now tables its final report.
On June 27, 2003, the Supreme Court of Canada delivered its judgment in Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, where it held unconstitutional the provisions of the Canada Elections Act restricting access to certain benefits to political parties that have nominated candidates in less than 50 electoral districts. The Court stated that the 50-candidate threshold to obtain, and then retain, registered political party status and thus benefit from the right to issue tax receipts for donations received outside elections period, the right of candidates to transfer unspent election funds to their party, and the right of a party's candidates to list their party affiliation on the ballot papers, was contrary to section 3 of the Canadian Charter of Rights and Freedoms. Section 3 provides that: ``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.'' The Court stated that this provision, in addition to protecting the right to vote or run for an elected office in Parliament or a legislative assembly, also encompasses the right for each citizen to meaningful participation in the electoral process. Withholding the benefits referred to above from parties that have not satisfied the 50-candidate threshold infringes upon this right. Other benefits that are conferred to registered political parties such as access to free broadcast time, the right to purchase reserved broadcast time and the right to receive partial reimbursement of election expenses upon receiving a certain percentage of the vote were not at issue in the Figueroa case. The Court suspended its declaration of unconstitutionality for 12 months to enable the government to comply with its reasons.
On October 2, 2003, Bill C-51, An Act to amend the Canada Elections Act and the Income Tax Act, was introduced in the House of Commons in response to the Figueroa decision. Bill C-51 died on the Order Paper when the Second Session of the Thirty-Seventh Parliament was prorogued, and was reintroduced as Bill C-3 in the Third Session of the Thirty-Seventh Parliament.
Bill C-3, which received Royal Assent as An Act to amend the Canada Elections Act and the Income Tax Act (S.C. 2004, c. 24) (``the Act''), made numerous amendments to the Canada Elections Act and the Income Tax Act to adjust the requirements for political party registration. It replaced the 50-candidate threshold by a series of new registration requirements providing, inter alia:
That a party endorse and support at least one candidate;
That it provide a signed declaration of support from at least 250 members; and
That it have no fewer than three officers in addition to the leader of the party.
In addition, the Act added to the Canada Elections Act a purpose-based definition of ``political party'' and required that the leader make a 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. These new requirements have to be complied with at registration and on an on-going basis after that. In this regard, every three years, a registered political party must provide the Chief Electoral Officer with the names of 250 members; and every year, the party's leader must confirm to the Chief Electoral Officer that one of the fundamental purposes of the party is to participate in public affairs by endorsing and supporting one or more of its members as candidates. The Act also enacted measures to prevent entities from registering simply for the purpose of obtaining financial and other benefits and from redirecting tax-receipted contributions to outside entities. It created new offences and added a mechanism for judicial deregistration of a political party.
Concerns were raised by parliamentarians, the Chief Electoral Officer and other witnesses during the study of the Act by the Senate and the House of Commons, especially at committee stage while the Act was before the House of Commons Standing Committee on Procedure and House Affairs and the Standing Senate Committee on Legal and Constitutional Affairs. Mr. Jean-Pierre Kingsley, then Chief Electoral Officer, expressed uneasiness about looking at the affairs of a political party to ensure that one of its fundamental purposes was to participate in public affairs.
Mr. Miguel Figueroa, leader of the Communist Party of Canada, and initiator of the litigation which led to the Figueroa decision, objected to the 250-member requirement and considered the previous 100-member requirement sufficient. He also expressed concerns with regard to penalty provisions that could lead to deregistration of a political party and liquidation of its assets. Finally, Mr. Figueroa expressed uneasiness about factors that could be taken into account in determining the fundamental purposes of a political party, which included documents such as the party's political program. Parliamentarians and other witnesses also voiced concerns with respect to the new one-candidate threshold which, they feared, could lead to a proliferation of registered political parties and put into jeopardy benefits offered to registered political parties such as free broadcast time.
As a result of these concerns, and to reflect the fact that the Act was then seen as an interim solution given the limited time available to Parliament to respond to the Figueroa decision, a two-year sunset clause was inserted into the Act. This provision was replaced at the beginning of the First Session of the Thirty-Ninth Parliament by a requirement for a mandatory review by both the Senate and House of Commons committees that normally consider electoral matters (See An Act to amend An Act to amend the Canada Elections Act and the Income Tax Act, S.C. 2006, c. 1). Based on this provision, your Committee was authorized on Thursday, February 28, 2008, 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); and submit its final report no later than May 11, 2008.
The first witnesses to appear before the Committee were Mr. Marc Mayrand, Chief Electoral Officer, and representatives from Elections Canada. The Chief Electoral Officer stated that the administration of the amendments of the Act did not cause any particular problems to his Office. In brief, he indicated that it works well. The Chief Electoral Officer also noted that there has been no significant increase in the number of political parties since the enactment of the Act. Prior to the Act, there were nine registered political parties and three political parties eligible for registration. Now, there are 16 registered political parties and 3 political parties eligible for registration. Since the enactment of the act, 12 requests for registration have been denied by the Chief Electoral Officer, mostly because required basic information was not submitted or the requirements for registration were not met.
As for the 250-member requirement, the Chief Electoral Officer stated that it is a useful tool in ensuring the authenticity of political parties. In this regard, he stressed the importance of the .triennial obligation to provide the list of 250 members which relieves his Office from determining when such a list shall be provided by political parties. This requirement and other registration requirements as well as the other obligations contained in the Canada Elections Act, such as filing returns, explaining expenditures and contributions collected, et cetera, require registered political parties to demonstrate an organizational structure.
As far as the definition of ``political party'' is concerned, the Chief Electoral Officer relies on the declaration of the party's leader on the fundamental purposes of the organization and on the fact that the organization does indeed endorse and support one of its members as a candidate. The party leader's statement to the effect that one of the fundamental purposes of the party is to participate in public affairs is accepted on its face unless there are reasons to doubt its truthfulness.
All political parties represented in the House of Commons were invited to present their views and comments on the act. The Conservative Party of Canada and the Bloc Québécois sent letters to your Committee while representatives of the Liberal Party of Canada and New Democratic Party appeared before the Committee.
Mr. Greg Fergus, National Director of the Liberal Party of Canada, Mr. Jack Siegel, Co-Chair of the Standing Committee on the Constitution and Legal Affairs of the Liberal Party, and Mr. Éric Hébert-Daly, National Director of the New Democratic Party, appeared before your Committee.
Mr. Hébert-Daly stated that his concerns at the time the act was enacted in respect of the proliferation of registered political parties and the potential for financial abuses have not materialized. He, however, expressed some concerns about the threshold required in order to qualify for public funding: 2 per cent of the total of votes cast or 5 per cent of the votes cast in the electoral districts where the registered party endorsed candidates. He stated that a vote for a smaller party should not be worth less than a vote for one of the other parties. As for the one-candidate threshold, Mr. Hébert-Daly stated that one candidate is and should be sufficient.
Mr. Fergus expressed some concerns about the Canada Elections Act containing no provision regulating the source of assets and liabilities at the date of registration. As to the registration requirements, Mr. Fergus suggested that the triennial timeline for submission of the names of 250 members should be more flexible when the deadline occurs during a general election campaign. The representatives of the Liberal Party also argued that the one-candidate threshold completely eliminated the distinction between an independent candidate and a political party, and that in this respect a minimum of two candidates might be more rational. In other words, the rule should be: one is an independent; two is a political party. As to the definition of political party, Mr. Siegel suggested that it might be appropriate to replace the current requirement that one of the fundamental purposes of a political party is to participate in public affairs by the requirement that the dominant purpose of a political party is to participate in public affairs. Mr. Siegel also suggested that the Commissioner of Canada Elections rather than the Chief Electoral Officer should have the responsibility to examine the activities of political parties in order to determine their real nature and purpose.
In its letter to the Committee, the Conservative Party of Canada suggested that, for practical reasons, political parties that have enough Members in the House of Commons to have recognized status should be relieved of the obligation to submit a declaration from the party's leader every year and the names of 250 of its members every three years.
In its letter to the Committee, the Bloc Québécois stated that the provisions of the Act had not caused that party any particular problems. It also echoed the recommendation from the Conservative Party that political parties represented in Parliament should not have to submit the names of 250 of their members every three years.
Several representatives from other registered and eligible political parties not represented in Parliament also appeared before your Committee: Ms. Liz White, Leader of the Animal Alliance Environment Voters Party of Canada, the Hon. Sinclair M. Stevens, Leader of the Progressive Canadian Party, Ms. Laurel McCallum, representative of the Leader of the People's Political Power Party of Canada, Mr. Peter Graham, Finance Critic of the 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. A letter was also received from Mr. Will Arlow, representative of the Canadian Action Party.
None of the representatives from the political parties not represented in Parliament advocated the repeal of the Act and it appears from their testimony that there is a general consensus that most of its provisions should remain in place. The parties did, however, make some complaints and recommendations.
Complaints were expressed with regard to the mechanism by which free broadcasting time and reserved broadcasting time are allocated, and it was suggested to your Committee that a mechanism which would provide greater equality of media coverage among the registered political parties should be put in place. All of these political parties, except the Marxist-Leninist Party of Canada which suggested the abolition of public subsidization of political parties, advocated for the removal of the thresholds to qualify for public funding. Some witnesses also suggested that the Canada Elections Act should be amended to restore more private funding of political parties.
As to the registration requirements, there was an agreement among most parties that the one-candidate threshold was sufficient and adequate. Some parties indicated they could live with a two-candidate threshold. Though no formal objections were raised against the 250-member threshold, your Committee has been told that this requirement constitutes one more administrative burden and that as such it is an additional disincentive for smaller political parties. However, all parties said that fulfilling this obligation was feasible, and, to some, it provided an opportunity to contact members.
Mr. Figueroa reiterated the concerns that he had articulated in 2004 while the Act was studied in committee especially with regard to the penalty provisions that could eventually lead to the deregistration and liquidation of assets for failure to comply with the Act. Mr. Figueroa recommended that the Act be amended in order to require fraudulent intent for such harsh punishment. He also expressed his concerns with subsection 521.1(5) of the Canada Elections Act, as amended by the Act, which enumerates factors that shall be taken into account by the court in determining a political party's fundamental purposes. Specific concerns were expressed with regard to paragraph (c) which provides that the court shall consider any public statement of a political party in support of another political party or candidate. The leader of the Communist Party stated that this factor was particularly worrisome since his party does not run candidates in all electoral districts and its supporters ask the party for guidance as to what other party they should vote for.
Mr. Nelson Wiseman, Associate Professor at the Department of Political Studies of the University of Toronto also appeared before your Committee. Mr. Wiseman had testified before your Committee when the Act was referred to it in 2004. At that time, he had voiced serious concerns that the new registration requirements might lead to a proliferation of registered political parties. Mr. Wiseman said that the flood he had anticipated did not materialize. He nonetheless maintained some uneasiness about the Chief Electoral Officer, and the Commissioner of Canada Elections, reviewing political materials in order to determine whether or not an organization was involved in public affairs. He indicated that elections authorities should not be in the business of defining what constitutes public affairs. Mr. Wiseman disagreed with the complaint of some smaller parties which had requested equal media time.
Based on the testimony of the witnesses who appeared before it, your Committee concludes that the Act has not caused particular problems in the electoral process. The Committee, therefore, does not recommend amendments at this time.
Your Committee, however, notes the concerns that were expressed before it with respect to the value of one citizen's vote for a political party that does not meet the thresholds provided by subsection 435.01(1) in order to qualify for public subsidization. Your Committee was told that this threshold had been challenged before the courts. The lower court found the threshold unconstitutional. This decision was later reversed by the Court of Appeal for Ontario (see Longley v. Canada (Attorney General), 2007 ONCA 852). Leave to appeal to the Supreme Court of Canada was denied. Your Committee is also aware of a recent judgment of the Ontario Superior Court of Justice which declared of no force and effect provisions of the Ontario Elections Act requiring a candidate to receive at least 10 per cent of the vote in order to be reimbursed his or her $200 deposit. The Court relied on the reasoning in Figueroa to support its decision. See Jong v. Ontario (Attorney General), 2007 CanLII 44348 (Ont. S.C.J.).
There have been only two general elections since the Act came into force. Over time, it may become apparent that changes to the Act would be worthwhile. In this respect, your Committee would suggest that the Chief Electoral Officer include, within his report after the next general election, comments on the operation of the provisions of the Act that are the subject of this review. Based on these comments and the results of any court challenges then decided, your Committee and the committee of House of Commons that normally considers electoral matters may be called upon to examine further the amendments made by the Act.
Respectfully submitted,
JOAN FRASER
Chair