Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence of April 12, 2000
OTTAWA, Wednesday, April 12, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, respecting the election of members to the House of Commons, repealing other Acts relating to elections and making consequential amendments to other Acts, met this day at 3:30 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are meeting to hear further evidence on Bill C-2. Our first witness today is from the Canadian Taxpayers' Federation.
Mr. Walter Robinson, Federal Director, Canadian Taxpayers' Federation: Madam Chair, as Federal Director of the Canadian Taxpayers' Federation, it is indeed a pleasure to appear before your committee this afternoon as you study Bill C-2, a piece of proposed legislation that is pivotal to the effective functioning and legitimacy of our democratic system.
The Canadian Taxpayers' Federation is a non-partisan and not-for-profit federally incorporated advocacy and research group. In 10 short years, we have grown to become Canada's foremost taxpayer advocacy group. We now boast 83,000 supporters.
There are many clauses in the bill that require improvement, but in my limited time with you I will confine myself to the issues of citizens and citizen advocacy, group spending limits, election reimbursements, and emerging issues not addressed in Bill C-2.
Madam Chair, allow me to digress for one second. The term "third party" is pejorative and personally offensive to me. Participation in the political process is essential and is just as important for those who place their names on a ballot as for those who choose to promote or oppose parties or candidates or issues through all possible legal means.
Elections that engage the nation in vibrant and compelling public policy discourse are surely a sign of a healthy democracy. Indeed, such citizen engagement, both inside and outside our Parliamentary system, is essential if our democratic traditions are to be upheld and strengthened. Yet the changes advocated in Bill C-2 with respect to citizen and citizen advocacy group advertising, clauses 349 to 362, run contrary to this democratic ethos and serve to weaken rather than strengthen the body politic.
To recap, citizen and citizen group advocacy spending limits stem from the 1974 revisions to the Elections Act, based on the view at the time of members of Parliament and elections experts that election campaign participation should be limited to official parties and candidates. With respect, what an offensive, arrogant and contemptuous view of the democratic process!
Twenty-five years later, and after repeated court interventions, this government is once again attempting to stifle democratic participation in election campaigns by citizen advocacy groups, labour unions, chambers of commerce and the like, right down to the local 4-H club or neighbourhood association.
Let us be very clear. A $150,000 spending limit for citizen and citizen advocacy groups may seem generous, but it works out to a mere $498.34 per riding if applied across all 301 ridings. In communities such as Montreal, Toronto, Ottawa, Vancouver, even Red Deer, a local group cannot buy even a single quarter-page ad in the weekly community newspaper for this paltry amount.
On the other hand, a political party that maximizes its national spending limit of 62 cents per elector and spends the allowable limit in all 301 constituencies in this country could spend upwards of $25 million. Such a situation is hardly fair.
The main argument for spending limits on extra-parliamentary actors is that access to big money could influence voters. Contrary to the architects of this proposed law, we do not believe that voters are stupid. Recent experience shows that excessive spending does not necessarily influence voting intentions.
During the 1988 election, free-trade supporters far outspent those opposing the agreement. Yet a majority of Canadians voted for political parties opposing the FTA. In 1992 -- as I am sure Senator Beaudoin can remember -- the yes side for the Charlottetown accord outspent the no side by a factor of 13 to 1; yet the no side still prevailed in a majority of Canadian provinces and the accord was defeated.
In 1993 -- and I can point to Senator Nolin now -- the federal PC Party and its candidates spent some $20 million for the great electoral success of two seats.
I did not mean that as a personal insult, Senator Nolin. Please do not take it as such.
In June last year, organized labour and other groups spent millions of dollars in an effort to oust the Harris government from office in Ontario. In the result, Mr. Harris and his party were returned to office with a greater majority than in 1995. If you wish, during questions I can also provide you with a litany of American examples to support my point that spending does not influence outcomes. No credible academic evidence on the face of the planet will support the contention that big money buys elections. Indeed, as shown above, recent Canadian experience points to perhaps the opposite conclusion.
There is no discounting the fact that advertising costs money and the provisions restricting extra-parliamentary participation in the election process, as I have shown in the example of a quarter-page ad, effectively amount to censorship. If limits are to be applied, they should be similar to those applicable to parties and individual candidates. Alternatively, if you are going to restrict something, restrict contributions, not spending.
In addition, the reporting and disclosure requirements of Bill C-2 will ensure that politics truly does become the domain of the rich and well connected, given the battery of lawyers and accountants that will be needed to meet all reporting and filing conditions. Indeed, this document can be viewed in general as a huge impediment to meaningful participation by citizens in the electoral process.
In the 1996 British Columbia election, our organization had to retain a full-time lawyer just to ensure we were always in compliance with the provisions of the province's Elections Act. Many of those provisions are also seen in this act.
Ordinary citizens or smaller groups may not have the resources to engage such professional help, again proving the point that the act limits participation instead of encouraging it.
Finally on this point, on March 9 this year, the B.C. government failed to exercise its option to appeal a B.C. Supreme Court decision that struck down that province's "gag law" provisions on citizen-group advertising. That decision was brought down one month earlier. That precedent must weigh heavily in your decisions on an act that you surely know, if you do intend to pass it, will be challenged in the courts by groups like ours and others. Or, even worse, it will simply be ignored.
According to wire reports, the B.C. judges "said there is no proof third-party spending or the reporting of polls have had any effect on the election process."
Let us address the issue of candidate reimbursements. The tax system already contains generous provisions for those who wish to contribute to political parties and/or campaigns. Indeed, it has always perplexed us that the tax system allows a 75 per cent tax credit on a political contribution of $100, while the same amount donated to the United Way, the local AIDS hospice, or the Canadian Cancer Society warrants a mere 17 per cent tax credit.
Now, clause 560 raises this limit for 75 per cent treatment to $200. I wonder if the irony of this situation resonates with any of the members of this committee.
On top of this, election reimbursements represent another barrier to meaningful and new participation in the electoral process. Our analysis reveals that, after the 1997 federal election, 1,672 candidates filed reports, and a record number -- 801 of them to be precise -- were eligible to receive campaign reimbursements. In fact, taxpayers forked over $16.5 million to these 801 candidates for an average reimbursement grant of some $20,630.
This represents an 11 per cent increase from 1993, when 714 successful and defeated candidates received $14.8 million from taxpayers for an average grant of $20,815. The argument in defence of these subsidies is that they are necessary to help people who could not otherwise afford to run. Fair enough, for such would leave politics for only the well to do, but again, the opposite is actually true.
In 1993, of the 714 candidates who received reimbursements, 710 ran for one of the five major parties. In 1997, only two candidates of the 801 who received reimbursements fell outside of the five major political parties in this country.
This practice also encourages candidates to run deficits, knowing that the taxpayer-funded reimbursement will put their campaigns back in the black and provide financing for their riding associations for the next campaign.
In the current Parliament, 123 of your colleagues, as you would say, "in the other place," ran campaign deficits in 1997. These reimbursements reward fiscal irresponsibility and also provide huge war chests for campaigns that run themselves in the black, again skewing the playing field for the next electoral cycle. We believe that the practice of candidate reimbursements should cease.
On other matters, we believe that the Chief Electoral Officer should be given the power to recruit and appoint returning officers and special ballot officers, as the current practice encourages patronage within the electoral system.
If I may digress from my prepared text, while there is no perception that there is any patronage within the system, an Elections Act and an electoral system must be above any such perception. Why do you not put into practice provisions that would mitigate those concerns?
Furthermore, this committee should give thought to mechanisms within this bill that would allow the Chief Electoral Officer to study the merits of other voting systems such as proportional representation, mixed member proportional, transferable ballots, and the like. Such research would be invaluable should Parliament wish to engage Canadians in a debate about reforming our archaic first-past-the-post voting system.
We are one of four post-industrial democracies still using this system, and in the mother of all democracies, Great Britain, "first past the post" is going the way of the dodo bird.
Finally, we might applaud the amendment that allows the CEO to at least study the issue of electronic voting. While we stand at the threshold of a new century, we are still wedded to a system rooted in the voting traditions of the 19th and 20th centuries. Surely this committee should give thought to the use of new technologies in the voting exercise.
Madam Chair, we believe there is great room for improvement in this proposed legislation and submit our ideas for your consideration. Citizen and citizen advocacy group spending limits as presently envisaged, and restrictions on participation by the widest array of political parties possible, do a disservice to an electorate already sceptical of Canada's institutions of government.
Allow me to close with some appropriates words from a famed Russian novelist and dissident, Alexander Solzhenitsyn, who won the Nobel Prize for literature in 1970. On November 15, 1969 -- and by way of information, I appeared before the House committee on November 15, 1999 -- Solzhenitsyn penned a letter to the Writers' Union in Moscow, in which he wrote:
It is time to remember that the first thing we belong to is humanity. And humanity is separated from the animal world by thought and speech and they should naturally be free. If they are fettered, we go back to being animals.
Madam Chair, let us treat voters as humans, not animals. Let us trust their judgment and their capacity to choose, and let us wholly understand that the legitimacy of any government's mandate comes from Canada's 19 million voters. Let them speak loudly and freely, and as often as they choose.
[Translation]
Senator Beaudoin: For several days now, people have been telling us that political parties have too many advantages over third parties.
Is it a question of money? I would be very surprised if it were simply a question of money, however important money may be in an election. What is your philosophy?
Political parties have to be on an even footing. Third parties -- regardless of what we call them -- are in another position altogether. They have the right to be involved in the election process, because democracy is the foundation of that process. We have a democratic parliamentary system. Obviously, we could increase funding for salaries, reimbursement, and so on, but is there another philosophy?
Mr. Robinson: First of all, I do not like the term "third party". We are a citizens' group, a workers' union. We are not a third party. The same goes for community associations.
Senator Beaudoin: What do you call them?
Mr. Robinson: A citizens' group, an organization formed by citizens to protect the interests of our militants.
[English]
To go further, to use "third party" as a legal term is to say that an election is a contract between voters and those who would govern them. Everyone else is like an interloper to that contract. In a multi-party, multi-interest, democratic, pluralistic society we have both a parliamentary system and groups who choose to be extra-parliamentary actors. All are necessary for the healthy functioning of a contest of ideas.
Thomas Jefferson found it totally reprehensible for people to support political beliefs that they abhor. That is what we see with the candidate reimbursements and a variety of other measures that entrench power within established parties.
Senator Beaudoin: Could you repeat what Thomas Jefferson said?
Mr. Robinson: I am paraphrasing his quote.
Senator Oliver: Senator Beaudoin is a Jefferson scholar.
Mr. Robinson: Senator Oliver, when I go to Washington, I go to the Jefferson Memorial first, then I make my way to the Korean War Memorial, which tells us that freedom is not free.
Jefferson mentioned in his early writings that he found it abhorrent to compel free men -- free citizens in terms of our 21st century understanding of everyone's right to participate in an electoral process -- to support views that they found abhorrent.
Senator Joyal, I will not apply my self-reference criteria to that of the 18th century. I will deal in the 21st century. I have connected Jefferson's remarks to the testimony for our purposes, where he found it abhorrent for free people, individuals, to support political views that they found abhorrent, and I agree with that.
Our philosophy is that, if you restrict anything, restrict contributions, and set a limit of $1,000, $5,000, or $10,000 per citizen that they can contribute to one cause, one party, three parties, five citizen advocacy groups, or however they see fit. Our contention with respect to the citizen advocacy group, or as the proposed law describes it, "third party spending limits," is that it is based on the premise that voters are stupid, cannot choose, and that information disseminated in an election campaign is not of value to them.
It is the same with some of the restrictions in the bill on what constitutes a party, about which I have not spoken. In Europe, there is a variety of citizen advocacy groups that put out information. Sometimes you have 25 or 30 candidates on ballots, representing 15 or 20 different parties. The voters are intelligent. They can distinguish between who is frivolous and who they believe is serious. They can choose whose ideas they wish to accept and whose they reject. We are asking for that same sort of respect for voters in this process, since, as I point out, elections are for voters, not for parties. Elections are for ideas, not for constraining rules. That is our philosophy.
Senator Joyal: Mr. Robinson, when you made your presentation to the corresponding committee of the House of Commons, what were the main objections that were raised to the request that you put to us today? In your opinion, on what grounds were they wrong in their reply?
[Translation]
Mr. Robinson: Four questions were asked at the House of Commons committee.
[English]
Most of them were asked by government members. First and foremost, they asked about our objection to third-party spending limits. The point was made that if the amount of money spent does not influence the outcome, why should we care if it is limited, which is a "slippery slope logic" argument. I point out that there is an entry price to run a national campaign. You will spend a certain amount to put ideas forward.
When they asked about a circumstance where four political parties outside of Quebec would represent a cross-section of views, I raised the example of a military base located in a riding, or bordering on a number of different ridings, where nuclear weapons transportation or storage of toxic wastes may be issues. All the political parties may indeed support that storage of toxic waste, yet a neighbourhood association may believe that it is fundamentally wrong and fear for the health of the children. They would be limited to $3,000 per riding. Four candidates with spending limits anywhere between $60,000 and $100,000 could very quickly dwarf that and put out a large amount of information. Again, in terms of a flyer drop in metropolitan ridings, $3,000 will not do the job if you want to distribute in three or four ridings. It is difficult to run a full-page newspaper ad on an issue that may be of pre-eminent importance to those voters. That is why I pointed out the citizen advocacy group spending limits.
The second objection was on candidate reimbursements. Incidentally, it was raised by Ms Wasylycia-Leis, an NDP member, I believe, from Manitoba. I needed to point out to her in our summary that it was actually the NDP members of Parliament who ran the most frugal and cost-effective campaigns in the 1997 election.
Seventy-five per cent of the Tory candidates elected to the House of Commons ran deficits, while only 24 per cent of the NDP candidates elected did so. That is quite an irony. That does not encourage more participation; it only serves to entrench representation within the system. Sitting members of Parliament, regardless of party, who run their campaigns in the black get a reimbursement, and in addition to that, have a huge war chest for their riding associations to use between elections and into the next campaign, should the need arise. In addition, most studies show that incumbency provides a 2 per cent to 4 per cent polling advantage.
The third question that was raised was --
[Translation]
The Quebec model sets limits for unions and co-operatives. A group of citizens or an individual may contribute to a party. Only individuals can do that.
[English]
That is not a formal position of ours, but it is something that you might explore. In that way, every citizen still has the right to participate, and that could be a fairer approach.
The fourth objection raised was just a point of fact. The chairman, Mr. Lee, the MP for Scarborough--Rouge River, said that he believed our information on the costs to run a quarter-page ad in various metropolitan or rural constituencies was flawed. He said that he can run a quarter-page ad for $200. I believe that he has a preferred rate for members of Parliament over three or four years. That is well within his rights as a member. In the 37-day window of an election campaign, you cannot negotiate a long-term deal with Metroland newspapers in the greater Toronto region or with a Quebecor subsidiary in Montreal or Quebec City. We provided him with evidence of advertising rates across the country from Metroland, the largest group of community newspapers in the country. I am willing to table with this committee that evidence, which shows that you just cannot do it for $500 a riding.
I hope that I have addressed your question.
The Constitution guarantees rights and freedoms. No rights are absolute, but if you are going to limit the constitutional freedom of expression of an individual or a group, you and the courts must demonstrate beyond a shadow of a doubt how the exercise of that right infringes upon the rights of other citizens or groups in their fair participation in the electoral process. It does not. In the Libman decision, the court pointed out that some of these issues are very difficult. You must prove beyond a shadow of a doubt that our group, exercising its constitutional freedom of expression, infringes upon that of other voters. The courts have continually said it does not.
Some groups will seek to break this law. Other groups will challenge it in the courts. I will say to you publicly that we will make a mockery of this law in terms of its third-party citizen restrictions. In one sense, I look forward to being charged under the provisions of the act for exercising our freedom of expression. If that happens, I will someday tell my son, who is now two years old, that I became a political prisoner in my own country.
The third-party citizen advocacy group spending restrictions must be lifted. That is our main concern with this bill. The journalists will probably speak to you about polls.
Our Elections Act has served us well. You have had foisted upon you comprehensive and substantive changes to that act that make elections for the privileged and the well-heeled. The very things that you are trying to avoid will happen with the provisions of this bill.
Senator Joyal: I understand the logic of your position. However, you yourself referred to what is reasonable in a free and democratic society. You gave the example of a small region where there is a nuclear facility and people are very concerned about its impact. By the same token, wealth is not equally distributed in society. Most of the time it is concentrated, and with globalization the trend is to more concentration. Canadians are concerned about that.
If we open the gate in the way that you have suggested, will we not be creating a bigger problem than the one we want to solve? Where is the reasonableness in the criteria? I understand that $3,000 might not be a large amount of money in, for example, a rural riding concerned about forestry. On the other hand, by going to the other extreme, would we not be totally thwarting the electoral process? Where do we find the balance?
Mr. Robinson: I will answer your second question first, in terms of the limit I propose. Perhaps the Quebec model of limiting contributions should be looked at. I think that would be fair to all citizens. Second, as I pointed out in my testimony, perhaps citizen advocacy groups or individuals should be put on par with elected representatives in terms of spending limits.
We as a citizen advocacy group do not issue tax receipts. We do not participate in the tax system in that manner, so we find the provisions for disclosure of our supporters very tough to deal with. I do not know how it could be broken down.
The way to make a mockery of the law would be to have 300 people put their names on the ballot and tell everyone not to vote for them, that they are simply pressing an issue. We would then be in the realm of $60,000 spending limits, or more, depending on the constituency. That makes a farce of the process. People would clearly see what we were trying to do.
With respect to concentrations of wealth, in 1964 Barry Goldwater raised $5.8 million from 410,000 small contributors, only to lose in a landslide. In 1994, Oliver North raised $20 million in Virginia for his Senate race, most of it in $20, $50 and $100 contributions. He lost.
Senator Fraser: Mr. Robinson, I am not a lawyer. I am, nonetheless, puzzled by your certainty that the provisions of this bill on third party spending would be struck down by the courts. I should like to read to you a few pieces from the Libman decision and then ask you why, in light of those, you think this bill would be so vulnerable.
The court goes on at some length about the principle of electoral fairness. It says, for example, that to ensure a right of equal participation in democratic government, laws limiting spending are needed and such spending limits are necessary to prevent the most affluent from monopolizing election discourse.
The court said:
It is also important to limit independent spending more strictly than spending by candidates or political parties. It cannot be presumed that equal numbers of individuals or groups will have equivalent financial resources to promote each candidate or political party, or to advocate the various stands taken on a single issue that will ultimately be associated with one of the candidates or political parties.
While we recognize their right to participate in the electoral process, independent individuals and groups cannot be subject to the same financial rules as candidates or political parties and be allowed the same spending limits. Although what they have to say is important, it is the candidates and political parties that are running for election. Limits on independent spending must therefore be lower than those imposed on candidates...
To my non-lawyer's mind, that seems to be a very strong set of instructions to the legislators. Why do you think this bill, which seems to me to reflect those instructions fairly carefully, would fall?
Mr. Robinson: Senator Fraser, I have taken a look at the line of questioning you took with other witnesses before this committee and knew that the Libman decision would come up. Let me put a few facts on the table. The Libman decision is the outlier, in terms of all the other decisions that have been rendered in Canadian confederal history with respect to citizen advocacy groups and participation. If I may paraphrase, the decision said that elections are for candidates and political parties. Therein lies the fundamental flaw of the Libman decision. Elections are not for political parties. Elections are for voters -- period, full stop. Buying into the precept that elections are for political parties first and foremost does a great disservice to the electorate from whom their legitimacy stems. I am not a lawyer either, but I think that points to the flaw in the Libman decision.
With respect to the preface to that statement, in talking about the influential and the well-heeled, let me continue in response to Senator Joyal's question.
Senator Fraser: I see the examples you are illustrating there. I just want to say I do not think you need to go over the people who have raised quite a lot of money and still been defeated, because we are all familiar with those and other witnesses have referred to them. I am just asking, in this discussion between non-lawyers, what your legal grounds are. This is the Supreme Court of Canada we are talking about.
Mr. Robinson: Am I not at liberty to criticize the Supreme Court of Canada?
Senator Fraser: Of course you are, but why would you expect it to reverse its decision? What in this bill is so reprehensible that you would expect a court to reverse itself within a very few years?
Mr. Robinson: As we and other groups will probably demonstrate in any interventions before the Supreme Court, the body of academic evidence throughout the planet, in free and open democratic systems, points to the conclusions that they drew as erroneous and flawed. You said we are not concerned with the facts. We are concerned with the facts.
Senator Fraser: We have heard the facts already.
Mr. Robinson: Heaven forbid we would let the facts get in the way of solid judicial reasoning in decisions that affect the Canadian system.
I will just close with some more facts. In the 1994 House of Representatives races, the 34 Republicans who defeated incumbent Democrats spent, on average, two-thirds as much as the incumbents. There is no credible economic study on the face of the planet that shows that money buys elections. We have done a great deal of research on this, as have many other organizations such as Democracy Watch. Mr. Freeman, who has written a book on influence, will not tell you that money buys elections. They will be concerned about the access and the power of candidates.
Senator Fraser: Do you have any Canadian examples?
Mr. Robinson: I provided you with some that occurred in the last five years in my testimony. There was the free trade election, the 1992 Charlottetown <#0102>Accord referendum, the 1993 federal election, the 1997 federal election, and the 1999 provincial election. The list goes on and on and on.
We have to remember that people who contribute to a candidate, whatever the case may be, do not do it to buy influence. Studies have shown that it is based on party affiliation, ideology, constituent views and needs, and how amenable a candidate or politician is to those views and needs.
If I can engage in a touch of punditry for a second, in the last four years, we have had a variety of Supreme Court appointments because of turnover on the bench, and we now have justices with a legal history of supporting individual rights first and foremost, of fundamental respect for constitutional freedoms, and of only imposing on those when they infringe upon the constitutional freedoms of others. I see no compelling evidence that unrestricted citizen advocacy group advertising or unrestricted political party advertising infringes the constitutional rights of others. That is the basis of my certainty that this will be struck down.
Senator Fraser: I suspect we shall see how this one works out. I must say I am a little puzzled, though. If the amount of money spent is not pertinent, I do not see why you would object to controls on it, but that is perhaps for another day.
The Chairman: That was a statement, but you may respond, and then I am going to follow the same line.
Mr. Robinson: It is an issue of fairness and access to the system, to get your views out, first and foremost. In a modern, 25-million-square-kilometer country, it takes money to put out a point of view, and restricting that freedom of expression is not on.
The Chairman: I must point out, Mr. Robinson, that this may not be a good forum for stating that the decision of the Supreme Court within the last few years was erroneous. The Supreme Court in its decision on Libman in paragraph 56 says:
However, it is our view that the objective of Quebec's referendum legislation is highly laudable, as is that of the Canada Elections Act.
Further down, they state:
The legislature's objective can only be achieved through stricter limits on independent spending, which are supported by a large majority of Canadians.
This was based in part on the Lortie commission, which found very clearly that Canadian and comparative experience also demonstrate that any attempt to distinguish between partisan advocacy and issue advocacy, to prohibit spending on the former and to allow unregulated spending on the latter, cannot be sustained. At elections, the advocacy of issue positions inevitably has consequences for election discourse and must have partisan implications, either direct or indirect. Voters cast their ballots for candidates and not for issues.
I wonder if you can respond to that.
Mr. Robinson: Thank you, Madam Chair. While this may not be the forum, I will continue to exercise my freedom of expression by saying that I believe that the decision of the nine men and women on the bench at the time was fundamentally wrong and flawed, which comes back to the old expression that freedom is not free. We are allowed to do that, and I will continue to uphold that view. In the last six weeks, I have spoken to various chambers of commerce, 4-H clubs, Kiwanis clubs and so on, and pointed out some of the citizen advocacy limits with respect to this law. They were surprised and said, "You mean it applies to us?" It is interesting the way the issue has been framed as a problem of big, bad, evil money influencing politics. Again, heaven forbid that the facts should get in the way of that perception.
I agree that to limit those in the system who are playing by the elections rules as candidates and putting their names on the ballots, while allowing people in the extra-parliamentary system unfettered access may seem a little unfair.
Let us remember as well -- and I can speak from my own perception -- we do not benefit from the tax system. Candidates do. We do not give tax receipts to raise money. Candidates do. As I have pointed out, we find it fundamentally offensive to allow political candidates a 75 per cent tax credit, or people who give to a political candidate up to $200 a 75 per cent tax credit, while donors to the United Way, the AIDS hospice, the Canadian Cancer Society, and so on, get a 17 per cent tax credit.
The third point I would make with respect to your reading of the Libman decision is that I am really looking forward to the day when a candidate for Parliament challenges the provisions of this bill in terms of his or her ability to get elected and to publicize issues. That is coming, and I think that will be a quagmire with which you as legislators will have to deal. Candidates will challenge that.
Senator Murray: Mr. Robinson, I have a question about the statistics that you gave us from the last congressional election in the United States. Concerning the amounts that were spent by Republican and Democratic candidates, those are the amounts that were reported. I take it those amounts did not include what is obviously called "soft money"?
Mr. Robinson: You are absolutely correct. It does not include soft monies.
Senator Murray: What we are talking about here in terms of non-candidate, non-political party spending, in a Canadian context is really analogous to what they call "soft money" in the United States, right?
Mr. Robinson: To a degree, you could make that assertion.
Senator Murray: I do not know as much as I should about your organization. However, I see your advertising, your policy statements, and so on. I have never asked these questions of anyone before. I probably should have, so I will profit from the occasion to do so now. How many members do you have?
Mr. Robinson: We have 83,000 supporters. Membership would confer a voting right. We derive our policy positions from annual and periodic surveys, and our supporters vote with their dollars. If we do not represent their interests, they do not support us again.
Senator Murray: Do you draw a distinction between supporters and members?
Mr. Robinson: We have associate members or supporters -- call them what you wish. Those people write us a cheque each year, varying anywhere from $5 to $1,000 or more, and we have a $3 million annual budget.
Senator Murray: You have 83,000 of them?
Mr. Robinson: Yes.
Senator Murray: I knew that. Much of the material you put out is based on the surveys that you conduct. There are 83,000 supporters and there is no tie on them. That is to say, there is no membership fee. They contribute what they see fit, is that it?
Mr. Robinson: Yes. They contribute what they wish. In terms of an average donation, if you do the math on $3 million for an annual budget and 83,000 supporters, you are running at a little under $40 each. A general membership fee to obtain publication and affinity services and products is $107. That is less than 30 cents a day.
Senator Murray: In addition to the cheque they might send you, if they want to be members or if they want to receive the material, they pay $107?
Mr. Robinson: Yes. That is the base entry price.
Senator Murray: You do not issue tax receipts?
Mr. Robinson: No, we do not. We do not have charitable status nor do I think that we will ever apply in my lifetime.
Senator Murray: Is it not conceivable that some of the people who give $107 or $200 or even $50 write it off as an expense?
Mr. Robinson: It is conceivable that they do; we do not counsel that.
Senator Murray: I am not complaining about it for one minute.
Mr. Robinson: I can see where the line of questioning is going.
Senator Murray: No, the line of questions will stop now. I am not complaining for a second about it, but you do benefit in some way from the tax laws of the country that permit individuals, small businesses, and others, to write off contributions, membership fees, and so on, to organizations such as yours? You made much of the fact that you do not give out tax receipts.
Mr. Robinson: Overtly no, senator. First, in terms of how people run their financial affairs and what they do on their tax returns, yes, I am sure of that. Second, to get it on the table, as a federally incorporated not-for-profit organization, we have full GST. We are not making a profit. As with every other not-for-profit organization in the country, we are neither writing off the GST nor claiming it back.
Senator Fraser: I want to be sure that I understand. I probably missed something. You have 83,000 supporters, but they are not voting members.
Mr. Robinson: No, they are not.
Senator Fraser: How many voting members do you have?
Mr. Robinson: We have no voting members.
Senator Oliver: They vote with their dollars.
Mr. Robinson: Yes, they vote with their dollars.
Senator Fraser: Nonetheless, someone along the line must decide, for example, the questions that you include in your surveys, and so on. Who does that?
Mr. Robinson: As a federally incorporated not-for-profit organization, we have publicly available articles of incorporation that outline our aims and principles. There are three aims: To act as a watchdog on government spending, to advocate fiscal and democratic reforms, and to mobilize taxpayers to exercise their own rights and responsibilities, especially at a municipal level, on property tax issues and so on. From those articles of incorporation, you would quickly deduce that we incline to a limited government role focusing on priority spending in terms of public infrastructure, public education, and so on. That is to say, those social programs in which the majority of Canadians agree that the government has a role to play. From that, once a year we derive survey questions on a national basis with anywhere between a 5 to 10 per cent response rate from our supporters. It is unheard of in survey methodology to receive over 10,000 responses. We prorate that to reflect our support in each province across the country. Those questions are derived from our articles of incorporation. Some of the general themes we pursue are debt reduction, tax relief, and so on. Also, on a year-to-year basis, we include issues that arise on the legislative horizon. For example, NHL subsidies arose about a year and a half ago. We asked questions on it to ensure that our position opposing the government's bail-out plan had legitimacy. We have been asking about health care funding for two years now. We asks questions about issues such as two-tier medicine, public/private issues, what sort of reforms would you support or not support. Those things drive our democratic reforms and accountability. In fact, my presentations today have been derived from our survey results.
Senator Fraser: You keep referring to "we". Who are "we"?
Mr. Robinson: We have a 10-member volunteer board and five communications directors operating in the four western provinces. I double not only as the federal director, but also as the Ontario director and deal with issues periodically as they arise in Atlantic Canada. We do not have a great support base in Atlantic Canada yet, so I do not deal with many of those issues, but as that evolves we will have more of "we."
Senator Fraser: To whom do you report?
Mr. Robinson: I report to our board of directors and to the chairman of our board.
Senator Fraser: How often do they meet?
Mr. Robinson: The board meets four times a year, once in person. I submit monthly activity reports, as do all of our provincial directors, based upon our pre-set goals. For example, this past weekend, we met for four days at our administrative headquarters in Regina. We met to discuss survey results and devise the campaigns on which we will work next year, above and beyond the various legislative events -- for example, the budget, the opening of Parliament, the Auditor General's reports, and those static things on Parliament's calendar.
Senator Fraser: When you conduct your surveys, do you enlist the help of professionals to ensure that the questions are bias free?
Mr. Robinson: Absolutely. I am not on the administrative side of contracting the surveys, but we use a well-respected Western Canadian survey methodologist. We will devise the questions and he will often come back and say "No. That is loaded. That is biased. These things must be asked in this order." You have probably noted the jealousy between pollsters. They will say "The way he asked that question was biased. You should have used my methodology", and so on. We have someone with a respected, 20-year reputation in surveying methodology to help us. The survey is eight pages in length: four pages federal and four on various provincial issues. For example, agriculture issues would have more relevance on a survey in Saskatchewan and Manitoba than in Ontario, where we would ask more questions concerning privatization and the role of government.
[Translation]
Senator Nolin: It should be noted -- and this could help your argument -- that the Libman judgment came in the wake of the 1995 Quebec referendum. Under the Quebec Referendum Act, there can be no more than two opposing camps. And there is only one question, to which the answer is yes or no.
Of course, people can always spoil a ballot or abstain from voting. But these are not "regular" elections. The Court was completely correct in the decision it rendered for the Libman case. What you are saying is that the decision should not be applied to general or regular elections. Is that indeed your view?
Mr. Robinson: I have understood your views, and will incorporate them into any future presentations I make on the issue.
[English]
I would not go so far as to say it was not applicable to the parameters in which you frame it, to the Quebec referendum, the dichotomous choice that you must have in a referendum, and how the Libman decision evolved from that. It is one of the decisions that should be incorporated and looked at, and no doubt will be, by the current esteemed justices of the bench. It is inevitable that this will be challenged before the Supreme Court.
As I pointed out, it is the outlier to the general overview of "third party" as it is deemed in the law. It is what I like to refer to as "citizen advocacy," or labour union or business group presentations on this issue of spending limits. It is the outlier, compared to where the B.C. Supreme Court, the Alberta court, and the Ontario court to a lesser extent, have been on this issue. That is where the majority of the legislative activity has been.
A group would probably challenge it in B.C. or Alberta, at a provincial level, to get some precedent for federal decisions. Those courts do have a history of being more individualistic in their decisions.
Again, the body of legal evidence on which the Supreme Court would base a decision would use most of that, and the Libman decision is simply one.
[Translation]
Senator Nolin: I only have the French version of this decision. This is why I make my point. In paragraph 56 of the decision, the Court states that independent individuals and groups are allowed unlimited spending. It stated: "the system set up by the legislator to ensure a certain equality of resources between the options submitted to a referendum and thereby enhance democratic expression would become ineffective if independent individuals and groups were allowed unlimited spending or spending with a ceiling similar to that of the national committees." This appears to be key. In a referendum, people vote yes or no. Senator Joyal and myself worked very hard for one camp of the referendum. Other people worked just as hard for the other camp. There could not be a third camp. I remember Mr. Libman's requests very well. We were very concerned by his requests. There could not be a third team. The Court refers to the Canada Elections Act. The core of this decision consists in the sentence I have just read. We are not talking about a federal election, but about a referendum on a question with a yes or no answer. The question has a yes or no answer, even if it is somewhat complex. This is not a regular election, and I wanted to draw your attention to that fact.
Mr. Rochon: I agree with you.
[English]
Senator Joyal: What is the highest contribution that you have received?
Mr. Robinson: I believe the highest, in my three years with the federation, was a $5,000 one-time contribution. I can tell you that the majority of the contributions are in that $40 to $100 range. The median is $37, if I am not mistaken. We use face-to-face solicitation and direct mail.
As an aside, I appear on many talk radio programs. I will be debating somebody from the political left who will say that we are just the pawns of the big corporations. I tell them that if they had seen our stand on corporate welfare, on technology partnership funding for Bombardier, Pratt Whitney, and others, they would be assured that there are not too many companies putting up big bucks for us. I say on the radio that if there are any CEOs listening or reading the transcript, we are a good outfit and would appreciate a contribution.
Senator Oliver: I have one question. I have heard and understand your evidence. In your view, and your interpretation of the law, the limits Bill C-2 imposes on third parties should be removed. If the limits were increased to some other level, instead of averaging $500 per constituency, would your view be the same?
Mr. Robinson: Our view would be the same from a philosophical or pedagogical point of view. We would still be opposed to them in all shapes or forms. We would still be against it, there is no doubt, in terms of the practicality of running billboards or advocacy advertising.
Sometimes the issue is not to oppose or promote a candidate, it is just to put an idea on the table that is not being discussed. I can use the example of balanced budget legislation. Throughout the early 1990s, people said that we were crazy to advocate balanced budget and taxpayer protection legislation. That is what we do.
Senator Oliver: That is not my question. If, instead of having an average of $500 per constituency, it were $1,500, would that make a difference?
Mr. Robinson: No, we would want equal footing with candidates if you are going to do that.
Senator Moore: Mr. Robinson, you gave an example to Senator Joyal about a potential issue of nuclear waste. Do you not think that one of the four candidates in your example would be responding to that?
Mr. Robinson: Absolutely not, senator. Absolutely not. That would be to assume that political parties represent the variety and plurality of interests and issues that may arise in a campaign. That is not the case, and that is why extra-parliamentary groups exist. They do not find any vehicle or voice in a political party for certain issues or ideas.
Absolutely not. You cannot make that assumption, which I think is inherently underlying this law.
Senator Moore: I find that hard to accept. The key issue is in your example. One of the candidates would surely be alerted to that, and I trust the people because I know they would remind them.
Mr. Robinson: As do we. We are on the same page, but we need that vehicle to remind them. The 1988 election was about one issue, free trade. Many other issues just fell by the wayside. We believe it is wrong to effectively limit the ability of citizens to bring forward other issues that may only have a local or constituency-based flavour and never make the CBC evening news.
Senator Murray: First, I am intrigued by your suggestion that instead of spending limits we might have contribution limits. I presume that would apply to political parties and organizations such as yours. Have you thought that through and come up with a proposal?
Mr. Robinson: No.
Senator Murray: How would it work?
Mr. Robinson: I think there are several ways. You could follow the Quebec model, where it is individuals only. Each of Canada's 19 million voters, and indeed 31 million citizens, would still have a means of participating and putting their point of view across. Our 83,000 supporters, whether it be $10, $500, or $1,000, would do that.
There are many models now being proposed in the United States. Business as a corporate entity, or a labour group, or a citizen advocacy group such as ours, would not, in and of itself, be allowed to spend. However, its members or supporters could. There is some talk of placing check boxes on census forms and a variety of other things. We have not given it that much thought, other than doing a cursory overview of the literature.
Senator Murray: Is it your idea that the person would be allowed to give up to a certain amount of money, and could give it either to a political party or to an organization such as yours?
Mr. Robinson: They could, or if they do not approve of anybody, they could give it to fund the system. In several U.S. states a person can choose, in terms of their maximum political contribution, to say that they have $100 to contribute and want $75 to go a political party and the other $25 to fund the election infrastructure.
There are a variety of other models out there, but that would be the exact opposite of what we are fighting for here. It would still impose a level of fairness.
Senator Murray: Have you also reflected very much on what is happening in the United States these days? They are actually trying to do something to curb the influence of "soft money."
Mr. Robinson: I have watched Senator McCain's campaign closely. Campaign finance reform will be an issue in the early days. However, as you know, senator, every election is about hope, growth and prosperity. In the United States, education, the economy, inner-city blight and U.S. foreign policy will drive the election campaign. Sadly, a more substantial discussion of campaign finance reform, for all its advantages and disadvantages, will not be there. It will be a side issue.
Senator Murray: I have heard your critique of the first-past-the-post system. Have you a preferred option in terms of proportional representation or something of the kind?
Mr. Robinson: We are surveying our supporters to find out where they want us to stand on this issue. They all agree that the first-past-the-post system does not reflect their choices when they cast a ballot on election day. We have all heard the saying, "Thirty-eight per cent of the vote, 100 per cent of the power for the current government." You can apply the same to various provincial governments across the country.
A mix between the New Zealand mixed-member proportional system and perhaps the Irish system, which is run on an alternative ballot choice, might be something to look at. You can have staged elections in terms of run-offs.
The Prime Minister said at a Liberal meeting that he found it incongruous that Mr. Manning needed 66 per cent support to dissolve his party into the Canadian Alliance, but would only advocate 50 per cent plus one to break up a country. I would respond to that by saying that I find it disingenuous of the Prime Minister to say that he needs 50 per cent plus one to lead his party, yet only needs 38 per cent of the popular vote to lead the country.
The Chairman: I thank you very much for appearing before us, Mr. Robinson. We will take your opinions into consideration.
Our next witness is Mr. Bernard Côté, appearing as an individual.
[Translation]
Mr. Bernard Côté: I should like to thank you for the opportunity you have given me to testify before you and to suggest to the committee a number of amendments to the proposed reform of the Canada Elections Act.
First of all, I would like to explain why I am here. I have been involved in politics for almost 20 years with the Progressive Conservative Party of Canada. I have worked as a permanent organizer with the party, and have seen first-hand the problems engendered by the Canada Elections Act. I was also a member of the national executive of the party from 1989 to 1995, and have again been a member since September 1999.
I am appearing here before you in my personal capacity, and not as an official representative of the Progressive Conservative Party of Canada. On the basis of my political experience, I should like to make certain suggestions.
Under the existing system, registered political parties are required to submit an annual return to the Chief Electoral Officer. On the other hand, the riding associations of those political parties are not subject to any rules. The amendments that I suggest are designed to include the financial activities of all the riding or other associations in the return. For example, the provincial association of a federal political party would also be included, just like riding associations.
In other words, the riding or other associations of the political parties should be subject to the same rules relating to the disclosure of their financial operations as the official agent of that political party. Although I have not read all the details in the Bill, I have nevertheless noted a passage in section 375.2, where mention is made of a possibility that a registered party may appoint a registered agent who would be called a riding agent and would act as an extension of the official agent of the party. Rather, the Bill should state that a registered party has a duty to appoint riding agents in all the ridings that act under the umbrella of the official agent of a party.
In order to assess the importance of the riding associations, let us make the following assumptions, which I feel are very realistic (by which I mean I have verified them myself over the years). On the one hand, we have a political party that collects, through the offices of its official agent, a sum of $9 million per year in those years where there is no election. On the other hand, let us assume that there are 301 riding associations that collect an average of $10,000 each, or a total of more than $3 million. Thus, we have $9 million which is subject to the Canada Elections Act, plus another $3 million that is not subject to the Act. In other words, 25 per cent of the amount collected by a political party falls into a sort of legal vacuum.
In some instances, we have seen riding associations collect sums that are close to $100,000 per year. Thus, 25 per cent of the sums paid to a political party are, in this hypothesis, not subject to any regulations. We are therefore dealing with a double standard, depending on whether the donation is made to the official agent of the political party or to one of the party's riding associations.
There are a number of reasons to justify bringing riding associations under the umbrella of the official agent of a political party. For all practical purposes, riding associations are extensions of the political parties themselves -- in a sense, they are a franchise -- and make use of the name and reputation of their political party to carry on their fund-raising activities. It is perfectly natural, therefore, that they should be subject to the same rules as the political parties themselves, especially in terms of their fund-raising activities.
On another subject, there are a number of people who wish to attempt to exert influence on political parties by making substantial gifts yet remaining anonymous. At present, the riding associations constitute the best path for dealings of this kind, as they are not required to divulge where their funds come from. Slowly but surely, this avenue is undermining the faith that Canadians have in their political parties. Although the proposed amendments will not completely prevent practices of this kind, they will make them more difficult. That is everyone's goal.
There are other practical considerations for supporting changes of the kind I have suggested. When public opinion polls are good and a party happens to be in power, it is always much easier to maintain rigorous riding associations that can be renewed year after year, and in which successive executive committees pass on the documents relating to the life and activities of the association. These documents include bank accounts of the association, among many others. When the polls are less favourable, however, and when the party is no longer in power -- the Liberal Party undoubtedly experienced this in the 1980s and it was our turn to do so during the 1990s -- renewing the associations becomes much more difficult, and at the same time it becomes much easier to lose track of documents. As a result, the monies available in a riding association's bank accounts can potentially fall into the hands of almost anyone. I am convinced that in a number of financial institutions in this country there are dormant bank accounts belonging to the riding associations of political parties, potentially containing substantial sums of money. In addition, it is also possible to come up against a refusal by a former riding association executive committee to pass on to their duly appointed successors the monies collected by the association.
Including the riding associations as an integral part of a registered political party subject to the annual return to the Chief Electoral Officer -- and thus having a duty to disclose all the riding association's financial transactions -- would make it possible to prevent the kind of situation in which forgotten monies can be appropriated by almost anyone, or where money remains unclaimed in our financial institutions.
In short, it is very surprising to find that the political parties, through their official agents, are subject to strict rules governing disclosure to the CEO, whereas their riding associations, which may collect substantial sums of money each year -- as I have shown -- are not subject to any rules at all. At a time when Canadians are deeply cynical about their elected representatives, it seems important to me that we do everything we can to restore the trust of Canadians in their political institutions. A step in the right direction would be applying to the riding associations of our political parties the same rules that govern those political parties and their official agents. Those, in brief, are our suggestions.
Senator Nolin: Though you may be here in a personal capacity, Mr. Côté, I would like to thank you for enlightening the work of this committee. You are sharing an experience that some members of this committee perhaps do not have.
How can you compare the fundraising done by a registered party with the fundraising done by a riding association?
Mr. Côté: Registered parties raise funds through groups of individuals, which make up the executive of the official agent. They have a clear mandate to collect funds. They are the representatives of the party's official agent.
As for riding associations, their mandate is somewhat less clear, and this can create some confusion among donors. They never quite know whether their gifts are going to the right place, or elsewhere.
Senator Nolin: You must have some contact with representatives of other political entities. In your experience, do other political entities have these problems?
Mr. Côté: As we say, people will be people. If our party has these problems, then so do other parties and political entities as well. I am sure of it. This is exactly the kind of thing we want to avoid.
Senator Nolin: Have you ever personally witnessed the existence, at the riding association level, of what are commonly called parallel accounts?
Mr. Côté: Very often, and with substantial amounts. Which means there is an offence committed against the spirit of the Canada Elections Act, that requires some transparency.
Senator Nolin: What are these parallel accounts or funds used for?
Mr. Côté: All kinds of things, for example, supporting riding activities. When the parties organize activities like national conventions and so forth, these funds are used to pay the costs. Or the riding associations could simply use the funds to pay for a nice party with the money they have collected. In some cases it is also used to pay for the expenses of the member representing the riding in the House of Commons.
The funds can be used in all kinds of ways, some of which could be questioned. On the other hand, it is the association's choice, but it certainly could be questioned by the public.
Senator Nolin: In your preamble, you alluded to the fact that when the executive changes, it could happen that a treasurer, a president or a past member of the executive might not transfer the funds to the new executive. Does that happen often?
Mr. Côté: Once again, when it is smooth sailing for the political party, there are always more people who want to get on the executive of a riding association. When the water gets rougher, there are fewer candidates. So that kind of thing can easily be forgotten: the riding association, the accounts, everything that goes with the riding association.
On the other hand, when you have domestic squabbles in a riding association, for example, during a contested nomination, the association may support candidate A. You have another candidate, B, who shows up at the nomination meeting. He wins the nomination. A riding association was supporting candidate A. It decides it does not want to give the funds to the winner, candidate B, who now will represent his political party during the next elections.
Senator Nolin: The Elections Act is still rather strict -- and the new bill also -- concerning the funds that must be transmitted from a local organization and an official agent for running an election. There are still rules. Even if the funds are were not identified when they were collected, it still remains that the official agent cannot accept the funds if he does not have a series of names.
Mr. Côté: Concerning their origin, yes.
Senator Nolin: At this point, the system is working well because we know the provenance of the funds that will be used during the election campaign and you can vet the expense? Is that how it works?
Mr. Côté: The funds are vetted over a 30 to 45-day period during a campaign. Anything coming before that is not vetted. The riding association funds are prepared. You can smell the campaign coming and the funds will be spent between the time where you feel that an election will take place and the day the writ is issued. From that point on, the funds will be vetted but between times, no. The riding association will wind up on election day with one penny to its name and no funds to be transferred to the candidate. So the list of names to find the provenance of the funds is no longer necessary.
[English]
The Chairman: I want to follow up on this. I have other senators on my list, but I am very concerned about any discussion of a second sets of books.
A party could not possibly do this sort of thing under our present tax-receipting regime. I know from my own experience that the Liberal Party issues tax receipts centrally.
Mr. Côté: They all do that.
The Chairman: The money cannot then be fed into a second, secret set of books, unless this is money that is not receipted for tax purposes. If that is so, then we should be standing up and telling the Canadian public loudly and clearly not to donate money under those circumstances.
Mr. Côté: There is a lot of confusion among Canadians on whether they can give to a riding association or to the official agent of a political party. To the taxpayer, it is the same.
The Chairman: If they give to a riding association, the money is receipted centrally through the Liberal Party.
Mr. Côté: That can happen, but they are not obliged to do so. In some cases, people do not ask for the tax receipt or they believe that they will receive it at the end of the year. If they do not receive the receipt, then they may wonder where the money went, but by that time it is too late.
Senator Nolin: For clarification, are you saying the taxpayer is not asking for a receipt or is asked by the collector whether he or she wants a receipt?
Mr. Côté: Both.
The Chairman: I would suggest that somehow we make it known to the Canadian public that they should not donate money to political parties without getting a receipt. It is not right.
Mr. Côté: The way to do that is to regard riding associations as an extension of the political party.
The Chairman: They already are.
Mr. Côté: They are not obliged to do it.
Senator Oliver: The whole point is that they do not have to file financial statements and they should be required to do so.
The Chairman: They are not covered under the Elections Act, but they certainly are extensions of political parties and are receipted through the regular tax receipt form.
Senator Nolin: That is the purpose of the discussion. There is confusion. I am quite aware of how national parties operate, particularly the headquarters. We all have internal rules to ensure that funds are properly collected and expended. What about the riding associations, though?
This is why I asked that Mr. Côté come and testify. How does it work on the ground? Is it possible that people are confused? Yes it is. Are people not asking for receipts? Yes. Are they asked if they want a receipt? Are they told that if they do not request a receipt, the funds can to go to parallel accounts?
That is why Mr. Coté is asking us to close that loophole. We will hear from Mr. Kingsley in a few minutes and he will tell us the same thing.
The Chairman: It is a good question for Mr. Kingsley.
Senator Oliver: I am glad you are here. I did not know you were coming, but this is an area I do intend to canvass with Mr. Kingsley. This is not new. When I served on the Chief Electoral Officer's ad hoc committee from 1982 to 1984, this issue came up on every agenda. There have been many attempts to bring in legislation.
Do you have a proposed amendment to cover the accountability and transparency that you say there should be -- and I agree -- in relation to funds collected in constituencies?
Mr. Côté: I have no precise amendment to propose because, to be honest with you, I have not read the whole Elections Act. I only know that the loophole exists and it should be covered.
Senator Oliver: Financial statements as audited by a regular auditor and a duly qualified accounting firm should be filed on an annual basis with the CEO, among other things.
Mr. Côté: Yes. I believe the easiest way is to require any political party, when it files its report, to include a report from each riding association.
Senator Oliver: Right now they are required to report on any money received from a riding association or given to a riding association. You certainly want more than that?
Mr. Côté: Yes.
Senator Oliver: There should be financial statements accounting for all money.
Mr. Côté: Audited financial statements should be provided, just as in the case of a political party.
Senator Oliver: This would certainly go a long way toward producing the transparency and accountability that the Canadian people demand, require and desire.
Mr. Côté: Definitely. That is the whole purpose of being transparent. When you give to someone, you know that the money will be counted somewhere and audited. You know that it will go where it is supposed to go.
Senator Oliver: I want to state the main reason why your proposed amendment has never been successful and ask you to comment.
Bill C-2 is an bill respecting the election of members to the House of Commons. You are discussing things that happen when there is no election taking place, in a non-writ period. Are you saying that an election act should be broad enough to cover things that happen in a non-election period?
Mr. Côté: Yes. This is the democratic process we are discussing. The fundraising by riding associations is part of the democratic process in Canada, so it should be covered by the Elections Act.
Senator Oliver: Do you think that, in a non-writ period, MPs should be able to give receipts in their own riding and not require them to be issued by their parties?
Mr. Côté: No. The party should be the receipting authority at all times, except in the writ period, when you have an official agent in each riding for each candidate.
Senator Moore: I am interested, Mr. Côté, in your remarks about two sets of books and money that is not receipted and not going to the intended use of the party. How many situations exist of which you are aware?
Mr. Côté: I am not suggesting a second set of books. I am saying that money is given to a riding association and is not reported. There is a lot of confusion. People are not asking immediately for a tax receipt. The tax receipt is forgotten.
Senator Moore: I have never heard of that and I have collected money over the years. I have been an officer of every type at every level in Nova Scotia.
Senator Nolin: You did that for your party at the national level. That is why I asked Mr. Côté here.
Senator Moore: I do not understand.
Mr. Côté: If you are an official agent, definitely you are obliged.
Senator Murray: Senator Moore, we can get into the history, which we both know, of various parties in Nova Scotia. There was a series of trust funds in the Liberal Party at one point and the income from those. I do not know how that is registered under the relevant laws of Nova Scotia and how the income from that contributed to the upkeep of the party or its leader.
Senator Moore: It was the party that put out a statement.
Senator Murray: It is a parallel.
[Translation]
Senator Murray: Let us talk about the relationship between the national party, the party headquarters in Ottawa and the riding associations. Do the headquarters have a right of oversight over the funds? Does the national party exercise any form of control over the riding associations?
Mr. Côté: Based on my personal experience, no. I would say there is a will in that direction, but it is free and not coercive. It is not a mechanism that makes it mandatory for people to report. In clause 175.2 of the Elections Act, you will find the terms "the possibility" "is strongly encouraged."
Senator Murray: There is no obligation on the leaders of the national party to inform themselves about the financial state of the party at the riding level. That is what you're saying?
Mr. Côté: It is optional and all depends on what the people want. If they want to divulge information, they will do so and if they do not, then they will not. Often, if they have things to hide, they certainly will not divulge the information.
Senator Murray: Besides the Canada Elections Act, what legal status do riding associations have? These are not limited companies.
Mr. Côté: They are non-profit organizations, volunteer association.
Senator Murray: Is there an obligation for the outgoing treasurer to transfer the books, the bank accounts and all financial documents to his successor?
Mr. Côté: Yes.
Senator Murray: There is a moral obligation.
Mr. Côté: A moral obligation, yes, physical, no. Often, when you are in power, everything is going fine and everybody wants to be part of the riding association. All of a sudden, you are not in power anymore, you are shot down in flames like in 1993, you wind up with two MPs, people leave, the documents and the data are lost.
Finally, nobody remembers who the treasurer was, where the bank accounts are, the old treasurer dies, you cannot find the bank accounts anymore and so on. All kinds of things can happen whereas if there is an obligation for each one of the riding associations to have...
[English]
The Chairman: Are these not covered by the bylaws of the party though, rather than the Elections Act? They certainly are in the party with which I am familiar. A local riding association cannot use the official name of the party unless it subscribes to its bylaws.
Mr. Côté: They are supposed to, but everything is done on a volunteer basis, and the volunteer base is a lot greater when you are in power. When you are no longer in power, it tends to diminish.
[Translation]
Senator Murray: I get the impression that for the financial bit, the riding associations are independent, to all intents and purposes.
Mr. Côté: Yes, actually.
Senator Nolin: Now that you have explained how the federal system works, could you tell us how the provincial system works, in Quebec?
Mr. Côté: I did not read the legislation, exactly, but at the provincial level in Quebec, the political parties have a lot more control. The riding associations must report to their party which means that the funds collected, all the money, is funnelled to one specific spot and is then redistributed to the associations.
The money is collected and the political party takes the money and hands it back to the riding association. The provenance of funds is thus identified for the party. As for the riding association, the political party knows how much money they have given it. It is much easier to vet the whole thing and it is far more transparent for the donors participating in the exercise.
Senator Nolin: In Quebec -- like what is being suggested for the federal level -- is there a comprehensive audit system at the riding association level as well as at the overall level?
Mr. Côté: As the money is all going to the same place, it is audited everywhere and the funds are vetted. Everybody knows what is going on.
In Quebec, corporations can not collect money; only individuals may.
Senator Nolin: In one of your answers to Senator Oliver, you suggested there should be a single principal agent who would be the main collector of funds and issuer of receipts for tax purposes.
If we oblige a riding association to have a registered agent, a local agent who could be a riding agent who, to all practical intents and purposes would be an agent or a representative of the main agent, would it not be more practical, rather than centralizing the issuing of receipts and transfer of funds in one spot, to give him some kind of authority to issue receipts as is the case, for example, during an election period for the different official agents?
The protection for everyone would be that the financial work of the riding agent would be audited at least once a year and consolidated with the financial statements of the registered party. Would it be more practical to do things that way?
Mr. Côté: I understand the flexibility you are suggesting. However, are you covering only the time outside election periods?
Senator Nolin: All year, 365 days a year.
Mr. Côté: During the times outside of elections, the people collecting the funds are political party volunteers. Issuing receipts requires a lot of work, while for all the national political parties, you have permanent staff and people to take care of that kind of thing.
I think it would be more appropriate to give the job of issuing receipts to the official agent of the national party rather than to count on volunteers. The volunteers' work would be to collect funds.
Senator Murray: After a federal election, the candidate gets 15%. To whom is this amount payable? The official agent or the candidate?
Mr. Côté: If memory serves, it is the official agent.
Senator Nolin: The cheque is made out to both. We could ask Mr. Kingsley.
Senator Murray: You need two signatures to cash the cheque. Can they pocket the money without having paid off their debts?
Mr. Côté: A clear-minded candidate will use an official agent he can really trust. It is someone he will know well. Actually, they could very well take the money and split it between them.
[English]
The Chairman: Honourable senators, our next witness is Jean-Pierre Kingsley, the Chief Electoral Officer. With him are Tom McMahon, Acting Director of Legal Services, and Janice Vézina, Director of Election Financing.
Welcome to this committee once again.
Mr. Jean-Pierre Kingsley, Chief Electoral Officer, Elections Canada: As you mentioned, I am accompanied by Ms Vézina and Mr. McMahon. However, I am also accompanied by Diane Bruyère, who is the Assistant Director of Operations at Elections Canada, and the person at this end of the table with the most experience in electoral administration. She has been with Elections Canada for the duration of her career. It is a point of pride that we are able to retain people like Ms Bruyère, as well as to attract new people with a significant contribution to make.
Bill C-2 is the latest in a series of major amendments to the Canada Elections Act over the past decade. In 1992, Bill C-78 addressed issues relating to electors with disabilities. In 1993, Bill C-114 reformed the voting process to make it more user friendly and accessible for electors. In 1996, Bill C-63 established a national register of electors. Now you have before you Bill C-2, which would repeal the existing act and replace it with an entirely new one.
Bill C-2 constitutes the most significant reform of federal electoral law in Canada since I have been Chief Electoral Officer, which has now been for more than 10 years. Bill C-2 is easier to read and understand, and will be easier to administer than the current Canada Elections Act. The bill enhances transparency and fairness -- the main principles upon which the Canadian electoral process is built.
The comments by Senator Hays, upon introducing Bill C-2 in the Senate, presented the many changes embodied in the bill. I should like to supplement that information and table five documents for your consideration as reference tools. I do mean that they are reference tools. They are relatively large, therefore they need not be read in their entirety, but they will allow you to pick out the pieces you need for your consideration.
The first document summarizes the main changes proposed in Bill C-2. The second document compares provisions in Bill C-2 with recommendations made by the Chief Electoral Officer, the House of Commons Standing Committee on Procedure and House Affairs, 1998, the Special Committee on Electoral Reform of 1993, and the Royal Commission on Electoral Reform and Party Financing of 1992.
The third document consists of four charts that show the average amounts spent on election advertising in the last general election by different political parties and by their candidates. The fourth document explains the chronology of third-party regulation in Canada and in the United States.
I will add that the summary that we have prepared concerning the United States has been vetted by the highest authorities at the Federal Electoral Commission as to its accuracy. The fifth document relates to the 1997 Canadian Election Study and respondent views on third-party spending limits. I trust that these documents will be useful to you in your deliberations. We will, of course, refer to them in my presentation and throughout our discussion.
The most significant new provision in Bill C-2 concerns the introduction of a regime that extends spending limits and financial disclosure requirements to groups and individuals who pay for advertising during an election campaign but who are not candidates or registered political parties. These groups or individuals are commonly known as "third parties." Due to the significance of these proposals, I will deal principally with the third-party regime in my remarks.
The matter of regulating third-party election advertising has been much debated in recent years. In 1992, the Royal Commission on Electoral Reform and Party Financing recommended that election expenses incurred by any group or individual independently from political parties and candidates be limited to $1,000. Parliament enacted a third-party limit of $1,000 that received Royal Assent in May 1993. In June 1996, the Alberta Court of Appeal, in Somerville v. Attorney General of Canada, declared unconstitutional the $1,000 limit on third-party advertising in the act. The decision was not appealed.
In August 1997, in my report on that year's general election, I recommended for Parliament's consideration a regime for regulating third parties. To explain the basis for this recommendation, I said in my report, and I quote:
The present situation creates an anomaly, since registered political parties and candidates are subject to certain rules regarding their funding and the expenses they may incur to promote their candidacy or challenge that of their opponents, while third parties are not subject to any such constraints.
In the long run, it can be expected that this situation, if not remedied, will erode the financial foundation of the electoral system. Both parties and candidates will feel at a disadvantage compared with third parties, who will be able to organize and fund their activities in the shadows without any limits on the expenses they may incur while pursuing their goals.
I further stated in that report:
All Canadians have the right to know, at a minimum, who is intervening in the political debate and who is doing so through financial support; they are also entitled to know that spending limits apply to all participants.
I stated that:
The Referendum Act can serve as an example. Any group or individual that expects to spend above a certain threshold will have to register with, and receive authorization from the Chief Electoral Officer, just as referendum committees must do at the time of a referendum...
I continued:
Consideration should also be given to establishing legislated spending limits for advertising to support or oppose a political party or candidate. The limits might take into account the average amounts that the various political parties and candidates normally spend on advertising and will be lowered accordingly. This would make it possible to reach the objective of a level playing field that underlies the financial provisions of the present Act. $It should be noted that the above provisions could be modified and adapted to address the matter of issue advocacy.
Since that recommendation was made in August 1997, there have been two court decisions concerning the matter of third-party spending on advertising during election campaigns, one by the Supreme Court of Canada and one by a trial judge of the British Columbia Supreme Court.
In October 1997, the Supreme Court of Canada decided Libman v. Attorney General of Quebec, which dealt with spending by third parties under Quebec's referendum law, but the court went further than that. It expressly disapproved of the reasoning used by the Alberta Court of Appeal in Somerville. The court noted that the Alberta Court of Appeal found that the objective of limiting third-party spending was inconsistent with the Canadian Charter of Rights and Freedoms because it gave preferential treatment to the expression of candidates and political parties to the detriment of third parties. The Supreme Court then added:
However, it is our view that the objective of Quebec's referendum legislation is highly laudable, as is that of the Canada Elections Act.
The court further stated:
For spending limits to be fully effective, they must apply to all possible election expenses, including those of independent individuals and groups. $(Such) expenses should include not only those incurred by political parties and candidates, but also those incurred by independent individuals and groups unrelated to the parties and candidates.
The court continued:
The actions of independent individuals and groups can directly or indirectly support one of the parties or candidates, thereby resulting in an imbalance in the financial resources each candidate or political party is permitted.
The court continued:
...While we recognize their rights to participate in the electoral process, independent individuals and groups cannot be subject to the same financial rules as candidates or political parties and be allowed the same spending limits. Although what they have to say is important, it is the candidates and political parties that are running for election. Limits on independent spending must therefore be lower than those imposed on candidates or political parties. Otherwise, owing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate.
More recently, in February 2000, a trial judge in British Columbia struck down British Columbia's regime, not the federal one, for third parties. Justice Brenner chose to pursue reasons other than the Supreme Court's to arrive at a different judgment. Moreover, he expressed the view that spending on advertising by political parties does have an influence on electors, while that of third parties does not.
In my view, third parties wish to advertise because they seek to influence the outcome of an election and believe that their advertising will assist in that. Stated more generally, it stands to reason that anyone who advertises is by definition seeking to influence the election and the behaviour of others.
Third parties have the right to express their political views. Moreover, Canadians have a right to know who is placing election advertising and who is funding those attempts to influence elections. They also have the right to know that third parties are subject to reasonable election advertising limits. The foundation of the Canada Elections Act starts to erode over time if this matter is not addressed.
[Translation]
I found out, with interest, that the US Supreme Court drew on the judgment of the Supreme Court of Canada in the Libman affair for its decision in a recent election funding case opposing the Attorney General, Nixon v Shrink Missouri Government, a third party, handed down on January 24, 2000. In the Nixon case, the Court confirmed the limits of contributions under a Missouri law. This is an important case that gave the Court the opportunity to re-examine its preceding decisions in the area of election campaign funding.
There are important lessons to be drawn from the experience of election campaign funding in the US. The five-page document we have given you gives the detail of how the main objective was eroded because of certain decisions I will be mentioning.
In the early 70s, the American Congress passed legislation limiting contributions to candidates and their expenses. The U.S. Supreme Court abolished the limit on expenses but maintained the limits on contributions. It disallowed limits on expenses mainly because unlimited expenses favoured political expression, in its view.
What were the results of this? The result is twofold. Ever-increasing campaign expenses or third-party money are the unlimited and largely non-regulated gifts of money that can be used for the general expenses of a campaign, promotional activities of a party such as campaigns to get the vote out and the publication of generic party publicity or advertising that promotes parties but not a specific candidate. The consequences of unlimited expenses and third-party spending are clear. We are witnessing a campaign for the presidency where the Republican Party candidate has collected over 70 million US dollars to date.
This is such a major amount that he has refused matching federal funds because were he to accept them, he would have had to accept putting a ceiling on his expenses. Besides, during the 1998 American Senate general elections, the elected candidates spent an average of 4.7 billion US dollars. The average for all candidates was 1.8 billion US dollars. That included the winners at $4.7 billion. The losers spent less than one million. The candidates elected during the 1998 House of representatives general elections spent 660,000 US dollars. The average for the losing candidates was a bit less than 150,000 US dollars. For the losing candidates that means they spent four times more, on average, than the expense limit allowed for a Canadian candidate which is 60,000 Canadian dollars.
Third-party spending is what occurs when only certain types of election expenses are regulated. Since 1991 American laws require national political party committees to declare the third-party contributions they have received. According to a group involved in funding election campaigns, an unprecedented $500 million US in third-party spending is expected for the year 2000 electoral cycle, which represents almost twice the amount contributed in 1996. I might point out that the figures I have just quoted do not include the third-party contributions made to each party's state committee, nor the amounts contributed by third parties to electoral advertising that is not for or against a given candidate, what they call "issue advocacy."
That is what happens when freedom of expression amounts to the freedom to spend. Moreover, legislation relating to election campaign funding that tries to limit certain types of expenditures but not others opens the door to huge loopholes.
In Canada, Parliament has chosen to limit expenses for candidates and parties rather than limit contributions and these expenditure limits are complemented by legislation requiring the disclosure of public funding sources for certain types of election expenses as well as guaranteed access to prime-time radio and television advertising and free radio and television broadcast time.
The Supreme Court has ruled that the Constitution allows Parliament to promote political equality for citizens and candidates. In other words, the Canadian model recognizes that allowing unlimited spending might very well stifle the voices of the candidates with fewer resources and reduce the number of people who can run for office.
By imposing reasonable limits on spending, we increase the diversity of political opinions that are voiced and we allow a greater number of people to become candidates. We have figures to support that.
Our Canadian values are the very embodiment of the notion that everyone, not only those who are better off in our society, should have an equal opportunity to express his or her political opinions. In the 1997 study, a detailed polling of Canadian voters undertaken by a group of Canadian university professors asked the respondents if people or groups other than political parties and candidates could advertize and if there should be a limit placed on the expenditures. Some 82 per cent of respondents stated that third-party spending should be limited.
Ten per cent answered no and ten per cent were undecided. I might point out that many thousands of Canadian voters were polled during and after the 1997 general elections. That was the large survey of elections in Canada.
I am submitting a fifth document today, an excerpt from a letter dealing with this survey that I sent to the House of Commons Standing Committee on Procedure and House Affairs in February 1998. This except deals with this matter in its entirety, since Elections Canada had commissioned these questions for the said survey.
In Canada, third parties are regulated in Quebec and, according to Bill C-2, they will be regulated under the Canada Elections Act. Regulation of third parties is an essential adjunct to existing election campaign funding legislation. In the bill, the amount that a third party can spend on advertising for or against a candidate is $3,000. To better understand the scope of this limit, let us say that during the 1997 general election, candidates spent $13,500 for advertising, on average. The candidates for the five parties represented in the House of Commons spent an average of $18,500 each for their campaign publicity. We compare advertising to advertising, advertising limits to advertising limits or ceilings.
Moreover, the bill sets a limit of $150,000 on the amount that a third party can spend for election advertising throughout the entire country. I have here some graphs showing how much the political parties and candidates spent on election advertising for the 1997 elections. I might point out that the parties that don't run candidates in all ridings spend much more on advertising than those that do have candidates in all ridings and that since the former have fewer candidates, their spending limits are much lower.
Also, it is important to emphasize that Bill C-2 would regulate only third-party advertising during an election campaign. Any amount spent on advertising by a third party outside an election period as well as any amount spent by a third party during an election period on something other than advertising as defined in Bill C-2 would remain unregulated.
It is possible to make a direct comparison between the limits imposed on third-party spending for advertising and the spending limits for candidates or political parties that apply to all election expenses, but not solely to advertising expenses. For example, 40 to 45% of election expenses for parties and candidates go to activities other than advertising, such as renting office space, employees' salaries and other administrative expenditures related to the election campaign.
Finally, we must remember that third parties are not obligated to disclose the names of their donors. So Canadians have no way of knowing who is trying to influence their vote. Bill C-2 requires third parties to register if they spend more than $500 on election advertising, that they identify themselves in their advertising, and that they disclose the names of those who donate more than $200 Canadian for election advertising as well as contributions made up to six months before the elections.
I have taken this opportunity to emphasize what I feel is the most important aspect of Bill C-2, that is the third-party provisions. I would also like to point out that the bill contains a number of other positive changes.
All of the offences under the Act have been revised in Bill C-2. Various penalties have been expressly set out and new powers have been given to the Commissioner of Canada Elections, including the power to conclude transactions and request injunctions, whenever necessary.
Moreover, Bill C-2 requires the disclosure of the names and addresses of anyone having deposited more than $200 in a trust fund established by a political party for electoral purposes. Registered parties must submit more detailed annual financial statements that include any payments made out of the trust funds of registered parties and candidates, as well as riding and candidates' associations.
And there is more to be done. After the next general elections, the Chief Electoral Officer will submit a report evaluating the effects of all of these changes and recommending others, if necessary. As you can see, the Canada Elections Act is not final. It never will be.
Madam Chair, my colleagues and I would be very happy to answer your questions. In view of the scope of this bill, I hope you will allow me to call upon their expertise so as to provide you with the best possible information for your examination of this bill.
[English]
The Chairman: You certainly may call on anyone at the table, Mr. Kingsley.
Senator Beaudoin: You referred to two cases, the Pacific Press case in B.C. and Libman, which was about the referendum in Quebec. It applies to the Canada Elections Act in terms of some liberties such as freedom of expression, and so on. I should like to know from you to what extent you consider that this important case applies to the Canada Elections Act.
Mr. Kingsley: The Supreme Court of Canada would have to consider that, were there to be challenges and appeals. The Canada Elections Act contains limits and they would come to their judgment about that. They went out of their way, in a sense, during their consideration of the Libman case, to look at the judgment of the Alberta Court of Appeal concerning the very topic of third-party limits under the Canada Elections Act. I have quoted to you directly from their judgment as it applies to the Canada Elections Act, and how they see a scheme evolving to come to terms with the matter of third-party intervention in the Canadian system, if one is to attempt to preserve the regime of limits on parties and candidates that Canada has found so desirable.
Senator Oliver: I am pleased to see that about 95 per cent of your presentation deals with third-party advertising and third parties, because I spoke in the Senate on this bill and 100 per cent of my speech dealt with that. I see this as the most pressing problem with this piece of proposed legislation, although there are other areas with which I should like to deal, if we have time. My first question will deal only with third-party advertising.
I am a little surprised by a number of things you did not say in your speech. First, you did not refer to the book, Letting The People Decide: Dynamics of a Canadian Election. You did not refer to the very learned research of people like Professor Johnston, Professor Peter Aucoin, Professor Fletcher, and many others who gave evidence under oath and were cross-examined two months ago in the British Columbia case.
In that case, Mr. Justice Brenner stated in section 47:
In summary the experts who testified at trial agreed that there is no empirical study or evidence that third party spending has ever impacted on a referendum campaign or an election campaign in Canada. They also agreed that the only empirical studies or evidence on this subject demonstrate that third party spending either has no impact or at the very least that no impact can be demonstrated. In the result I find that there is no empirical evidence that third party spending during election campaigns has in the past affected voter intention in Canada.
Professor Peter Aucoin, who did the definitive study of the effect of third parties in Canada, examined indicators such as party turnover, voter turnout and similar indicia of competition. He determined that Canadian federal elections had been fair over the past 20 or 30 years during a time when there was effectively no restriction on third-party spending.
In view of those and the other comments in this case, which I am sure that you have read and are familiar with, I would like you to comment on what the state of the Canadian law is now, particularly having regard to Mr Justice Brenner's treatment of the doctrine of stare decisis.
Mr. Kingsley: I will give my impression, and then call upon Mr. McMahon to add anything further, if he wishes.
I did read the case, as I read the case in the Supreme Court on the issue.
Senator Oliver: This is the most recent case in Canada.
Mr. Kingsley: The Supreme Court of Canada dealt specifically with the Canada Elections Act and with the provisions as they exist now. The Supreme Court did identify a blueprint that the government, in my view, has attempted to follow in coming out with this scheme.
There may or may not be evidence. I know the royal commission at one time had received evidence from this same Professor Johnston, who subsequently changed his mind.
Senator Oliver: Based on empirical evidence. That is what this case is about. The problem with Libman is that it is based on the inaccurate evidence of the Lortie commission, which has now been reversed in a court of Canada.
Mr. Kingsley: I am not sure that the Supreme Court based its entire judgment on that.
Senator Oliver: I did not say the entire judgment. They based the provisions with respect to third-party advertising on the empirical results of Professor Johnston and Professor Aucoin in the Lortie commission. That has now been overturned.
Mr. Kingsley: Professor Aucoin did testify that, in his view, the royal commission would still have gone ahead and made the recommendations that it did in its report to impose a limit. That limit was set in the report at $1,000.
In my own report, I have tried to underline how could we expect to sustain the present regime, with limits on parties and candidates, if somehow third parties are not regulated.
Senator Oliver: Did you read what Justice Brenner said about the Charter?
Mr. Kingsley: Yes.
Senator Oliver: Can you speak to that? Is that important at all?
Mr. Kingsley: All the things that were said by all the justices are important.
Senator Oliver: I am talking about the Charter. Is the Charter not important?
Mr. Kingsley: Yes it is, but the Supreme Court of Canada also had the Charter in mind when it made its statements.
Senator Oliver: Mr. Justice Brenner distinguished that. What does he say about the Charter in relation to third-party advertising?
Mr. Tom McMahon, Acting Director, Legal Services, Elections Canada: He expressed the view that the objective of regulating third parties was not achieved. The Supreme Court of Canada said precisely the opposite in Libman.
Senator Oliver: How did they distinguish the doctrine of stare decisis?
Mr. McMahon: Justice Brennan pointedly said that the issue of the objective had been conceded before the Supreme Court of Canada, but he did not say that the court expressly addressed itself to a case where the objective had not been conceded, and that was Somerville.
That is how he distinguished Libman, by saying that the court had not looked at the objective in the sense that it was conceded before them. However, in fact, it may well have been conceded before them; the Supreme Court went out of its way to look at the case where the objective was very much an issue.
Senator Oliver: What is the difference between the language in Bill C-2 and that of the Pacific Press and Somerville cases that will mean that should this bill pass, it will not immediately be struck down in another court challenge, particularly having regard to the provisions of the Charter?
Mr. McMahon: We cannot predict how a court will deal with the bill.
Senator Oliver: You know what all the other cases have said. They found it unconstitutional and struck it down.
Mr. McMahon: We know that this bill, and these provisions and these limits, have not been considered by a court to date. We know that the Supreme Court of Canada has said that the objective of limiting third parties is highly laudable.
We know that a trial court and an Alberta court have disagreed. It is not for us to predict precisely how a court will decide. I think it is reasonable to predict that this will go to court and we will get a decision.
Senator Oliver: The main point is that if you are wrong, and it is my opinion that you are, this will not pass the light of day in the courts. We will have an election under your new rules and there will be absolute pandemonium. You will try to enforce these rules, and Canadians citizens, whom you have him limited to $500 a riding to make their issues known, to participate fully in the election process, will say that it is wrong. They will claim that their rights under the Charter are being denied.
There will be lawsuits and abuses, and it will be pandemonium. It seems to me that at the very least you should increase the limits to something reasonable. At $500 per riding, it is unreasonable.
Mr. Kingsley: The limit is $3,000 per riding.
Senator Oliver: On average. Do the average.
Mr. Kingsley: You are taking the $150,000.
Senator Oliver: The amount of $150,000 divided by 301 is $500 and change. That is an average.
Mr. Kingsley: Assuming people want to conduct a national campaign at the local level in every instance. This is not automatically so.
I wish to address your main point. The issue of courts overturning sections of the statute as an election is just about to get underway is not new at Elections Canada. It is not even unknown to this Chief Electoral Officer. If a court were to overturn any section of the statute, I automatically apply that judgment across the land.
I have never agreed that because a judgment was made in one province, that judgment will only prevail in that one province. I have automatically observed that throughout the land. Canadians deserve to have a general election under one set of rules from coast to coast.
I do not see chaos resulting in the way that you have described it. The judgments would be made quickly. I am sure that some people will want to contest that quite readily, as soon as the statute is enacted, should it be enacted.
The Chairman: Senator Oliver, if you have any further questions, I will put you down for a second round.
Senator Fraser: Welcome. I would like to say that on your last appearance here, when you were talking about riding names, I found you so interesting that I quoted you several times to various audiences, all of whom have agreed that you were very interesting.
Mr. Kingsley: Thank you.
Senator Fraser: Might I say.
The Chairman: We will see him again shortly on that same topic.
Mr. Kingsley: There is no end to this.
Senator Fraser: I also disagree with my very learned colleague, Senator Oliver, on third-party spending. I should like to ask you particularly about the provisions on opinion polls, requiring publication of methodology for any opinion poll that is published at any time during the election campaign.
I know that you have recommended similar rules in the past, but what I should like to know is why. Is there some specific evil here that needs to be remedied, or is it just that you think it is a good idea?
Mr. Kingsley: The idea came from the royal commission in 1992. They put in place a recommendation for exhaustive methodological reporting. The purpose of that was to allow Canadians to make up their own minds as to the validity of what they were reading. That was because fictitious polls were presented as being otherwise.
There is also the possibility of a rogue poll, which is one that is out of whack. Canadians have a right to come to conclude whether they think it is a rogue poll or not. We are always told that a poll is accurate within so many points 19 times out of 20. That tells me one time out of 20 something is completely out of whack.
By exposing the question of who funded it and the answer rates, Canadians can come to a judgment about the validity and value of the poll. They can use it as an instrument to instruct themselves and to do what I would consider to be a form of strategic voting. I have no objection to that. I think Canadians are very wise to vote strategically. Every vote is strategic in one sense or another in terms of every reasonable person who casts a vote. It was to enhance the richness of their knowledge base that the royal commission recommended it. I agreed with it and as a result put it in my own report.
Senator Fraser: My fear is that, inadvertently, we will diminish the richness of their knowledge base. I might observe incidentally that rogue polls can be as methodologically perfect as any other poll. Pure publication of methodology will not reveal a poll to be a rogue poll.
Mr. Kingsley: I agree.
Senator Fraser: It requires time and other polls to test it.
If you have examples of fictitious polls that have been published, I should really like the committee to have such examples.
Mr. Kingsley: There have been fictitious polls produced during elections at the very last minute.
Senator Murray: How far back do you want to go?
Senator Fraser: I should like to see those specific examples, if it is possible.
My concern is that when we apply this requirement to the entire election campaign period, as distinct from the end, when there is not time for the normal process of rebuttal to take place, we will prohibit the publication of partial, but possibly very important, information <#0107> specifically, but perhaps not only, leaked polls. I am sure you are aware that in the Brenner judgment, which Senator Oliver mentioned, a senior editor from The Vancouver Sun talked about a leaked poll from, ironically, the Liberals, which The Vancouver Sun thought was very newsworthy but was unable to publish because of the B.C. laws pertaining to the methodology requirements, which are similar to those in the bill before us. As a former journalist, I think the public was probably cheated in that transaction.
Mr. Kingsley: Part of the solution would have been for the Liberal Party to have been smart enough to leak the methodology as well. I am being a bit facetious when I say that. If that had been the case, it could have been reported.
The way it is now, the law requires that even for a leaked poll the first organization to publish it must establish the methodology and inform Canadians about it. I must be honest with you, senator. That is what would happen.
Senator Fraser: That is my problem. I am further perturbed because, as I recall, there are provisions stating that the sponsor would have to provide a copy of the poll, if necessary.
Mr. Kingsley: They have to make one available.
Senator Fraser: That will really kill leaked polls.
Senator Moore: Good.
Senator Fraser: Not necessarily good.
Senator Moore: I have seen it in practice.
Senator Fraser: So have I, Senator Moore, but from the other end. On issue polls in particular, this can be a most revealing instrument for voters to assess not only what a political party is saying but, potentially, why it is saying it at a given stage in a campaign. I have concerns.
Mr. Kingsley: Some of the leaked polls I mentioned that were false came from political parties.
Senator Fraser: I am sure of that. If you look at the Thomson decision, it seems to me that they keep coming back to the notion of controls being necessary late in the campaign rather than all the way through. Do you not see any distinction to be made between late in the campaign and for the full seven weeks? Forced speech is a fairly serious freedom of expression issue. That is what this amounts to. Do you not see any distinction between the two?
Mr. Kingsley: Up to this stage, I have not seen a distinction. Earlier in your questioning, senator, you indicated that it is important to be able to spot rogue polls and to see other polls. Some of those other polls are past as well as future to that poll. I view it as just as important to know what the methodology was at the start. Most of the organizations that do polling in a serious way do it throughout the campaign. If you know that the number of respondents is going down, it can lead you, as an intelligent person, to question some of the results you are seeing.
I consider it to be important at this stage that there be the methodological requirements throughout the duration of the 35- or 36-day campaign. I say 35 because on the thirty-sixth day you cannot publish a poll.
Senator Murray: I have always supported, and I continue to do so strongly, the idea of spending limits, not just on political parties but on other intervenors as well. I am indebted to your chronology, Mr. Kingsley, for refreshing my long-term memory on the point. I spoke on the 1983 bill that was brought into the Senate on behalf of the government of the day by Senator Austin. I have not changed my mind on the matter.
However, I do not know, and I defer to those who have studied the matter more closely, in particular the jurisprudence, whether the regime that you are proposing in this bill will be found by the courts to be too restrictive, too intrusive or whatever. Before you leave here tonight, you might let us know, for example, just how you arrived at the limits that you are proposing on third parties.
That, however, is not what I want to talk to you about. I am in favour of the limits, not because I think we have had such a horrible history, but precisely because I think we could well be in danger of going down this soft money path that the Americans are now trying to extricate themselves from. It has had such a terrible effect on politics down there. It has been exacerbated by their system, in which individual congressmen and senators from the day of their election set about trying to raise enough money from various sources, along with soft money, to keep themselves in office. That is why I am in favour of limits.
You can talk about those provisions when you get a minute, but I should like to talk about the register. The last time we had an opportunity to talk about this was at this very committee in December of 1996. This is my short-term memory operating, having been refreshed by some reading today.
There are some provisions in this bill, Madam Chairman, about the register, which is my justification for getting into the matter.
Mr. Kingsley, do you now have formal agreements with all the provinces regarding your access to their electoral lists?
Mr. Kingsley: With respect to the register, it is part of the statute. Regarding limits, I want to make one point. These are not my limits. This is a government bill. I did not establish these limits. I am not here to defend the limits. I spoke about the scheme, but this is a government bill. The limits were set by the government, not by the Chief Electoral Officer.
Senator Murray: I am sorry.
Mr. Kingsley: That is all right, but I thought I should mention that, because I have heard several such allusions.
With respect to the register, we have agreements with three territories and nine provinces to obtain information either from their electoral lists or from their motor vehicle driver's licence files, which provide quarterly updates.
The one province missing is Alberta. I am at the present time negotiating an agreement to receive the door-to-door enumeration results that will be collected in early September. That will allow us to refresh the federal list for Alberta.
Keep in mind that the federal list for the province of Alberta also has the advantage of using information from the income tax system and the citizenship system, because we have agreements with them as well. We are also obtaining vital statistics information from Alberta. That allows us to remove the names of voters who are deceased.
Senator Murray: I appreciate the answer. Let us be as specific as we possibly can. To how many provincial or territorial election lists or voter lists do you have access, by way of agreements with those provinces or territories?
Mr. Kingsley: We definitely have access in Quebec and possibly British Columbia. I say "possibly," because we do get data from their driver's licence information and some of it comes through the office of the electoral officer.
Senator Murray: This is important. We need to know this. With how many provinces or territories do you have motor vehicle information?
Mr. Kingsley: That would be eight. I must exclude Quebec. I get electors lists from the Chief Electoral Officer of Quebec, who gets, at the present time, motor vehicle information.
Senator Murray: From how many provinces or territories do you receive vital statistics?
Mr. Kingsley: We have all the provinces and the three territories as well.
Senator Murray: In addition to that, you have agreements with what used to be Revenue Canada, now the Canada Customs and Revenue Agency?
Mr. Kingsley: Yes, that is for all of Canada.
Senator Murray: Do you receive information from the Department of Citizenship and Immigration?
Mr. Kingsley: Yes, that is for new Canadians.
Senator Murray: You once said that the match-up between Revenue Canada files and an electors list was about 40 per cent. Is that still true? That was your statement to our committee at an earlier time.
Mr. Kingsley: I would have to verify the numbers.
Senator Murray: From Citizenship and Immigration you get the information on approximately 200,000 new Canadians every year, most of whom, we assume, are voters.
I do not know what kind of fit you find between motor vehicle information and the electoral lists. Principally, I suppose, you get those who turn 18 and go for a driver's licence. Is that it?
Mr. Kingsley: We get the new addresses of people who move. We get an excellent rate of matching -- although I forget the rate -- because we rely on name, address and date of birth as the factors on which we match.
Senator Murray: You have that for all the provinces?
Mr. Kingsley: For all the provinces where we get data to update our lists, yes.
Senator Murray: You have the motor vehicle statistics from nine provinces and the territories.
Mr. Kingsley: Would you like me to send you a note on the totality of the sources, sir?
Senator Murray: I do not want to take up too much time, but I really want to examine the reliability of the register, because we are looking at an election in a year or two. The basic list was compiled just before the election in 1997; right? You have been updating it by reference to the motor vehicle branches, vital statistics from 10 provinces, Revenue Canada, Citizenship and Immigration for a smaller group of voters, and electoral lists in Quebec.
How reliable do you think that is? Can we go into an election with that? I am startled by the fact that you only have the voters list from one province. When we spoke three and a half years ago, there were negotiations taking place, at the ministerial level to some extent but principally at the official level, with the provinces to obtain their voters lists.
Mr. Kingsley: Sir, I interpreted your question, perhaps erroneously, to mean, "Which data sources do you utilize on which you have agreements?", and in one province where we do not have access to drivers' licences, I said I have access to the electors list. I have an agreement to obtain the list from the Ontario election that took place last year. I have agreements to obtain the lists from British Columbia, from Quebec as I explained before, from Newfoundland, and I am working on a deal right now with Alberta.
Senator Murray: But you do not have any of those yet in hand?
Mr. Kingsley: I have the Ontario one in hand. I have the Quebec list in hand all the time. I get quarterly updates.
Senator Murray: The Ontario election list is now part of your register?
Mr. Kingsley: It is part of the data we use to replenish and refresh our lists.
Senator Murray: So you have Ontario's and Quebec's, and British Columbia's is coming, Newfoundland's is coming and Alberta's is coming?
Mr. Kingsley: Alberta's is in the works.
Senator Murray: Mr. Kingsley, why has this taken so long? Where are the others? Where are Nova Scotia and where are the other prairie provinces?
Mr. Kingsley: We will obtain the PEI list as soon as they are through with their election.
Senator Murray: They had an election around the same time as we did, did they not?
Mr. Kingsley: That is the list we used for the first election with the register. With Alberta and PEI, you may remember, we struck a partnership in which we shared the costs and the lists were drawn with those two provinces.
Senator Murray: Where are the other provinces? If you get all those, what about Nova Scotia, New Brunswick, Manitoba and Saskatchewan? Why are those lists not in hand?
Mr. Kingsley: First, they are not absolutely required for us to hold a good election. Second, I must have an agreement about the sharing of the lists. For my office to share in the lists, each list must be computerized and include name, address and date of birth. If their lists do not have those details, then I am looking for 1,000 needles in 10,000 haystacks.
Senator Murray: You have the 1997 enumeration plus motor vehicles and vital statistics and Revenue Canada information. I am wondering about the reliability of it, I must say.
The Chairman: Can we hurry up this line of questioning? This matter arose the last time Mr. Kingsley was before us and it has not changed in this particular bill.
Senator Murray: If you like, I can reference the particular matters.
The Chairman: I know where it is in the bill, but it has not changed from the last one.
Senator Murray: There are a few changes. One provision is that an agreement may require valuable consideration to be provided in exchange for the information given. You could do that before, could you not? You could pay for those lists?
Mr. Kingsley: Yes. I still can.
Senator Murray: Did you?
Mr. Kingsley: I have, yes. It is also important to remember that in some provinces they have not changed their legislation to allow me to have access to the lists. Computerization is one issue, and lack of legislation in the provinces is another.
I would like to answer your main question about the accuracy of the lists. We have methodologists who work on staff at Elections Canada whose job it is to report, at any time, the accuracy of the list based on "just before" updates and "just after" updates.
I can tell you that, on average, we have between 90 and 92 per cent of the names of electors on our lists. We have between 80 and 82 per cent of those at the right address. During the electoral process, when we send the notice of confirmation card, we send it to the address with the name that we have for that address, and through the revision process we say to people, "If you are not the person residing here, you have to get yourself revised."
This is an exhaustive revision system that is now the cornerstone of what happens between elections.
Senator Murray: All this happened after an enumeration in 1997. I do not quarrel with the state of the lists for the 1997 election. They were probably all right. You had an enumeration done. There was a lot of talk, when we discussed this before, about those lists being shared with provinces, municipalities, school boards and so forth for their elections. How many provinces, municipalities and school boards have taken advantage of this and used your lists, your national register?
Mr. Kingsley: Very few school boards; around 60 municipalities, including many in Nova Scotia. Winnipeg, certainly. In terms of the provinces, Newfoundland has a deal whereby they just take our list.
Senator Murray: There were six elections in the past year. Did any of those use the national register?
Mr. Kingsley: Ontario.
Senator Murray: Ontario used your list?
Mr. Kingsley: Yes.
Senator Murray: None of the others?
Mr. Kingsley: I cannot remember. I do not think so.
Senator Murray: Thank you.
Senator Lynch-Staunton: You will recall, Mr. Kingsley, that when we discussed switching from enumeration to the registry some of us objected. The main argument in favour of it was cost. We were told that we would save millions of dollars. It was difficult to get enumerators because there were thousands involved in a short period of time. I still think the enumeration process is the best process, because you hit every household. I am not impressed by the fact that it is 90 per cent here and 80 per cent there. It should be 100 per cent everywhere. The enumeration process was as close to 100 per cent as you could get.
The register has been proven to have errors, which is normal. Changes of address and so forth do not always catch up with the final list.
After all this time, will you still try to convince me that the new registry is an improvement, in terms of accuracy and numbers of electors, over the old enumeration system, leaving aside the cost of the enumeration system, which I know was very high?
I should like to think that, in a democracy, getting people on an election list should not have cost as its first consideration.
Mr. Kingsley: If you allow me to put into the equation the very sophisticated revision system that we have put into place, my answer is yes, we have a better system now than we did then.
You say that door-to-door enumeration got as close to 100 per cent as you could get. Door-to-door enumeration got you 94 per cent or perhaps 94.5 per cent of the electors. With the register, I indicate a range between 90 and 92 per cent, depending upon where you are in the cycle.
Senator Murray: Six weeks before an election?
Mr. Kingsley: It depends where you are in the cycle of updates. It is the update cycles that matter.
Senator Murray: The thing about the enumeration is that it took place a few weeks before people went to vote.
Mr. Kingsley: You picked up 92 per cent of the names by door-to-door enumeration and you added 3 per cent through revision. Your 95 equated to 100. We all kissed the 5 per cent goodbye under the old regime.
Under the present system, those people can register on polling day at the very last minute, even if they are off the list. I have always said the fail-safe to a good computerized system that relies on so many other data banks has to be polling-day registration. We have it at the federal level. We also have targeted revision, which will be specified in detail for each riding, with the returning officer sharing the information with the candidates about where that will take place, and being influenced by the candidates as to where it should take place.
Old people's homes, high mobility apartments, student residences, and new development areas would all be targeted. We have been utilizing all the by-elections that have taken place so far, including the one going on now, to perfect these tools, so that when the next general election comes around, and through the work that the returning officers are achieving and performing for us right now, we will have identified at least 95 per cent of those areas.
Senator Lynch-Staunton: The participation rate in the last election was the lowest since the end of the war, at 68 per cent. Do you agree with me that one of the reasons was that a lot of people were not enumerated and, therefore, were not alerted, which enumeration does, that an election was taking place?
Mr. Kingsley: If they were not enumerated, they were not on the list. If they were not on the list, they could not have contributed to the low participation rate.
Senator Lynch-Staunton: Had they been enumerated, they would have had a paper in front of them telling them that on a certain day they would go to a certain poll to vote.
The Chairman: Senator, I believe Mr. Kingsley is referring to the fact that the low percentage rate was a percentage of the registered voters. They had already been registered. The actual participation rate may have been even lower, but the percentage rate that Mr. Kingsley is referring to is of the ones who were registered.
Senator Lynch-Staunton: I will not get into a longer argument than that. You have already decided that my argument is erroneous. I still feel that the standard enumeration process, where people go from door to door and alert people that there is an election on, is much better for our system than the current one, which forces a person, if he does not tick off the appropriate place on his income tax form or do something else, to go voluntarily to register.
The American system is a registry system. Sometimes their elections have a participation rate of less than 50 per cent. I believe that one of the reasons for that is that the person has to go and register. Of course, down there you identify yourself as a member of a party or as an independent, which adds another burden to the whole process.
I like to think that our system of alerting people, of leaving them a slip of paper telling them where to vote, followed up by a card, kept them constantly aware of the fact that they had an obligation to vote. Now it has become more impersonal and less of an incentive.
Sorry for my rant.
The Chairman: I have allowed you to rant. Now we may get back to discussing the bill in front of us.
Senator Andreychuk: I thank Mr. Kingsley for attending and for adding something about Saskatchewan in the bill. I am pleased that we have now discovered Saskatchewan as a legitimate part of the Confederation. Having exercised our rights not to go onto daylight saving time, I trust it will work. I hope there will be some education specifically towards that, because the last act created a lot of confusion in some minds. Something extra has to be done in the way of preparation.
I want to touch on the registry for a moment. Some concern was expressed by myself and others that the registry was going to have access to information from Revenue Canada, drivers' licences, et cetera. Do you keep records of whether anyone has questioned the confidentiality of the information or whether that information has in any way been misused?
Mr. Kingsley: Yes, we do keep track of that. We have not had any instances, but approximately 800 Canadians have written to us to say that they wished to have their names removed from the register. Because we want to do that permanently, we put their names on a list of the people who do not want to be on the list.
We check at all times to ensure that, when we share the list with another jurisdiction, those names are not there. There is also another option. You can opt to have your name on the federal list but not have your name shared when you share with another jurisdiction. So, yes, we do keep track of that because of the very high importance of the personal information.
Senator Andreychuk: What were the reasons given by the 800? Was there some similarity?
Mr. Kingsley: There is no reason to be given. They just write in and say they wish to be removed. They do not need to give us a reason. We accept their decision. That is what the law says. It is their perception of how they want to protect their privacy, and we accept that holus-bolus.
Senator Andreychuk: In the minister's comments on this bill, it was stated that this legislation is the greatest overhaul of the act in 100 years and that the act is outdated, et cetera. You have spent a great deal of time, on behalf of the Government of Canada I propose, accepting invitations to analyze other electoral systems, and to assist with building other electoral systems, both in the newly emerging states and in the developing world. Do you believe that this is a modern act that satisfies what I would call a maturing democracy? Bearing in mind that the Lortie commission went into detail on this, do you believe that the electoral system is independent, and, if not, should it be?
Mr. Kingsley: I do believe that without this statute we would still have a good electoral law in this country, one that has served Canadians well and has enabled us to distinguish ourselves as a leading democracy in the world. I also believe that the additions that this act contains to help improve that situation are positive and will help to enhance that reputation even more. I am firmly of the view that the Office of the Chief Electoral Officer is independent and that elections are therefore run independently.
I have indicated that there were areas where there could be improvements in terms of the perception with respect to the appointment of several layers of officers, but certainly not that of the Chief Electoral Officer.
Senator Andreychuk: With respect to those layers of officers, are you implying that it would be best to have those appointments made through some professional process or would you opt for the existing process, which has been identified as a patronage system?
Mr. Kingsley: I have been very clear about that in all newspaper interviews and other appearances. The preference that I have is that the Office of the Chief Electoral Officer, through a process based on merit, would select and appoint the returning officers. That is the regime that abides in several provinces, including the Province of Quebec. If that course were followed, several real problems would be solved. One problem is that of a perception that has been expressed to me through my Advisory Committee of Political Parties with which representatives I meet every two months, approximately. There is a perception on their part that, when a returning officer has been appointed through a Governor-in-Council appointment process, which is a government appointment, they are not sure that they get equal footing in the door of the returning officer.
Returning officers are bound to respect the law and the direction that I provide to them. If they do not, they do not just get slapped on the fingers. If they do not, it is against the law, they are committing a crime, and I would not hesitate to bring them before justice. However, it is a very difficult problem to overcome.
There is also a management problem, which was really initially at the core of what I was trying to achieve. That is that sometimes your 10-year cycle, from which your redistribution occurs, creates all sorts of vacancies because in any riding wherein the geography is changed by one inch the returning officer automatically is no longer the returning officer unless and until he or she is reappointed.
At the last election, which was a significant election -- well, every election from now on will be a very significant election; they have been that way since Confederation, but at the last election we were faced with the need to train returning officers with barely any time given as notice and with, I believe, over 75 per cent of the returning officers never having run an election before. These are my key 301 people in the field. I would simply ask you this: What business do you know of that would undertake to do something that has so much interface reaction with Canadians, and replace 75 per cent of their people and give them 10 days, seven days, and in some cases three days training? I was scared. I was much more scared of that than I was of what we would get with the register. I really do not want to face that again and I do not want my successors to face that again.
Senator Oliver: Would you like this bill amended to reflect your views?
Senator Andreychuk: Perhaps that is an answer. I think it should be.
Mr. Kingsley: I think I attempted to answer that question when I said, at the closing of my remarks, that the Chief Electoral Officer will come back in his next report and deal with all the topics that remain. This is one topic on which I will never give up.
Senator Pearson: My question is quite short and it is really an informational question. One of the things that you have been noted for in your tenure in this office is the expansion of the vote to everyone you can possibly find to expand it to, and in fact this contains an expansion to the returning officers. Is that right? The returning officers can now vote, whereas they could not vote before?
Mr. Kingsley: Yes.
Senator Pearson: I recently spent a few days in the United States. I was asked about people in prison being able to vote in our country. I could not remember whether it was contained in the act that someone who is in prison for a certain period of time loses the vote at a certain stage. Would that be after two years?
Mr. Kingsley: Effectively, their vote is removed if their term of imprisonment is two years or more; in other words, if they are confined to a federal penitentiary. That was the equation that was made. If someone is to be incarcerated in a federal penitentiary, his or her right to vote is effectively removed. That is how the statute reads now. If someone is in a provincial prison, then the right to vote generally applies. Those are two general rules.
Senator Pearson: Was there something in this bill that changed that?
Mr. Kingsley: There is nothing in this bill that changes that, but court judgments are popping up all over. Court judgments in the past have resulted in the statute's being worded the way it is now, but with prisoners successfully challenging it time after time. In some jurisdictions we are getting judgments deciding that the statute is constitutional the way it is, and in other jurisdictions, where they have made five years the cut-off for provincial elections, the court has said five years is too arbitrary a number.
It will be very difficult to arrive at the final conclusion respecting the rights of prisoners to vote. Essentially, the courts seem to be saying that the measure is not refined enough, that we are not taking into account the nature of the crime, or this aspect or that. Perhaps eventually there will be one regime where the judge will have to impose part of the sentencing to include that, based on criteria that would be established in the statute. That is a possibility. At this time, this bill does not deal with any of that.
Senator Pearson: No, and I realize that, but it is a very interesting question, because it is now a question of a right in the Charter of Rights and Freedoms.
With your knowledge of the American system, I hope you will be able to answer this question: If you are in jail in the United States, you are effectively disenfranchised for life. Is that correct?
Mr. Kingsley: That depends on the legislation in different states. In different states, there can be different thresholds as to what bans you from voting for life. Some people are banned from voting for life even after they have left jail.
Senator Pearson: That is what I meant. When I heard that, I thought this perhaps answered the question Senator Lynch-Staunton raised with respect to the low turnout in general elections. They are all disenfranchised. We do not do that. Once you are out of jail, you are re-enfranchised.
Mr. Kingsley: Yes, automatically. In this bill, the government has also removed the penalty for certain types of infractions that lost you your right to vote. That is no longer a penalty under this statute. There are other penalties, but you can no longer lose your right to vote for having committed an offence.
The Chairman: Unless you are in a federal prison.
Mr. Kingsley: I meant an offence under this statute.
Senator Beaudoin: My question is very simple. If you are sentenced to jail, you lose your liberty. Why do you have to lose something else? There is no valid reason for that. You lose your liberty because you have committed a crime, but to lose your vote because you have committed a crime is, to me, a non sequitur. It is not consequential. It is even worse, if we distinguish between two years and ten years, because it is arbitrary.
The Chairman: Again, I believe we may be asking a bit too much of Mr. Kingsley to answer that. That is a political matter.
Senator Beaudoin: In any event, I have made my point.
[Translation]
Senator Nolin: Mr. Kingsley, I have great respect for your independence and I would like to ask you a question about clause 375 of the bill, dealing with the registered agents of political parties. One of the previous witnesses, who works actively for a political party, explained the funding process for riding associations. Some of my colleagues who are not familiar with partisan life were no doubt surprised to hear what happens in Canada.
In your report, you state that following the 35th general elections, in 1993, you produced a report dated 1996. You spoke at length about financial transparency for riding associations. I do not see your recommendations reflected in the present bill. I see an improvement over the previous system, but it is hardly noticeable.
You are now going to have an additional registry. I do not know whether there were political parties or riding associations that, with the previous system, were able to appoint an agent. We do not see your recommendations in this bill. You will tell me that it is not your bill, that you are simply the one who enforces it, but I would still like to know what you find frustrating about it. Please be honest, open and forthcoming.
Mr. Kingsley: Those are three qualities that have always caused me problems. It is true that the recommendation itself cannot be found in the report. I must admit, however, that the provisions included in the bill only begin the disclosure process for riding associations. This means that we are expecting this improvement to allow us to penetrate the area a little more so that we might begin to have a feeling for what is happening, but it is not quite enough.
What we would like to see is expressed in the study undertaken by Professor Stanbury who, for the purposes of the royal commission, had referred to the riding association as being a "black hole" in the election process. I will come back to that later.
Senator Nolin: Unless it is amended.
It is up to you to decide, but I intend to revisit it as long as the matter has not been resolved once and for all. My report is based on the thesis that all Canadians are entitled to know, but maybe not everything. In the long run and in the near future, these matters and others relating to the funding of political activities in the country will have to be addressed.
There are other issues that were raised by other people and that have not been included in my report. I intend to study these issues before my next report so that I might include them. For example, during the nomination meetings, large sums of money are spent and contributions are made to various candidates without anyone's knowledge. It can cost between $150,000 and $200,000 simply to obtain the nomination. The amount for an individual can vary. As a general rule, people do not know who is contributing, nor do they know how much is given.
There are leadership races for the political parties. In my report I recommended that we should someday shed more light on the issue. I think that this should be done before the next federal elections. There is also a broader definition given to trusts instead of defining them simply in terms of electoral purposes.
Senator Nolin: I appreciate your transparency, but this involves the credibility of the system. Canadians who are asked and who agree, for very legitimate reasons, to volunteer or to make a financial contribution to a political party want to believe in a system that is transparent. They are willing to believe as long as they do not discover any misappropriation.
Mr. Kingsley: There are remedies for breech of trust. That is what a bill must do, it must try to prevent that type of thing and when it cannot be prevented, then it must be dealt with. No bill can prevent everything. We have not yet managed to prevent murders, etc.
Senator Nolin: But they are less frequent.
Mr. Kingsley: They are less frequent because people are being made to think about it.
Senator Nolin: When you made that recommendation in 1996, I assume that you had a look at what was happening in other jurisdictions, among them Quebec? Can you tell us what is happening in Quebec in terms of monitoring the activities of riding associations? Would that be one of the options that might apply to the federal act?
Mr. Kingsley: I remember having considered this, especially because at the time, my predecessor was Jacques Girard, who came from Quebec, but I must admit that I do not remember the answer. I suspect it is a more transparent system, but I cannot remember.
[English]
Senator Moore: Mr. Kingsley, under proposed section 368 of this bill, you have the authority to review the name of a political party upon application for registration.
Mr. Kingsley: Is that so?
Senator Moore: Recently, you ruled so with respect to the registration of the Canadian Reform Conservative Alliance Party. You and your colleagues are based here in Ottawa, but you went to Calgary, I believe, to make that announcement. Why was that?
Mr. Kingsley: Simply put, I made the decision on the Monday night of the week that we were to go, expecting that I would be making a decision by the end of that week. I decided to go to Calgary without knowing what the outcome of my decision would be. I did so for what I consider to be good reason.
When I was in Manitoba and made my decision concerning the floods, although many people did not necessarily agree with it, I found that, if you have the time and you do go to the place where the people have either made the request or are expecting an answer, being there conveys something more to them than just the decision. It is not a faceless Ottawa bureaucrat standing behind his or her desk making the decision.
Senator Moore: Is the national registered office of that party in Calgary?
Mr. Kingsley: Yes, the head office of the Canadian Alliance is in Calgary. Every time they come to one of my meetings, someone has to come from Calgary. When we send official correspondence, it goes to Calgary.
Senator Moore: I am surprised that they are not located in Ottawa, if they are a national party.
Senator Lynch-Staunton: We are again being asked to pass a bill, part of which we know will be challenged in court. I find these situations arising much too often. We know that third-party financing will be challenged, yet we will go ahead with it. Hopefully, this time the subject matter will be supported in the courts. I wish these contested items were taken care of before we passed legislation, rather than after.
Having said that, I wish to follow up on what Senator Moore said. I will resist the temptation, Mr. Kingsley, to take you to task for the decision that you took in allowing a new political party to take the name of an established one -- one which it has been using for over 100 years. That matter is going to the courts and it is not for us to debate it here. However, it does bring up the question of the difficulty you have in these situations.
Whatever your decision, you are placed in an awkward position. Would you be receptive to an amendment of some sort that would give legal protection to an established party's name so that a new party would have to ensure that, in its name, it does not identify itself by using words that have already been allotted to an established party? It would be very difficult to do, for example, with the word "Canadian." However, it only belongs to one party. For example, if I wanted to create the Liberal Alliance of Canada and I registered that name, then that would be protected. Someone might then come up with a new republican party. This sounds unlikely, but I should like to see you liberated from the position of having to go to Calgary, or elsewhere. Is it possible to put in the act not only some kind of protection for established parties, as far as their name is concerned, but also some warning to a new party that they must identify themselves in such a way that there can be no confusion with an established party?
Mr. Kingsley: No matter what regime you put in place, and even if you remove the decision-making from the Chief Electoral Officer, there will always be a party that will contest if it feels that any part could resemble something in its name. We must not lose sight of the fact that, in Canada, we now have 10 political parties that are registered, plus two more that have met the test to be registered for the next election. At the previous election, we had 14 political parties. We have a regime that, while not unduly favouring the establishment of small parties, tends to encourage them to a certain extent.
I sit at the Advisory Committee of Political Parties with them. They have many complaints about how the law works. It is very salutary that the other parties have an opportunity to listen to that when I meet with all 10 of them at my advisory committee.
We could eventually wind up with 15 or 20 parties. If the judgment is that you require only two candidates to form a political party in this country, then we will be at 25 or 50 parties in no time. The opportunity to issue tax credits is such a strong inducement that the parties will want to multiply like rabbits.
Having said that, despite the fact that these are difficult decisions, I am quite at ease recognizing that the Chief Electoral Officer must make those decisions. It is the same as with the Manitoba decision during the floods. You take the time to examine the facts and then you make a decision. You move on. You must move on. The essence of our statute is just that. I feel quite at ease about that. It is up to parliamentarians if they wish to see that amended.
Senator Lynch-Staunton: I am asking for your advice, particularly since you are talking about multiplicity of parties and, perhaps, having 25 someday. Would it not be better for the law to protect the names of parties rather than to leave it up to the discretion of one individual, which might be contested in the courts? I understand that our party will do that, as will the one in Saskatchewan. Who needs that sort of litigation?
Mr. Kingsley: My point is that there will be litigation, notwithstanding that. It will not be possible to have parties that do not take one part of another party's name. When you get to 20, 24 and 25 parties, the word "Democrat" will appear, as will the words "Liberal", "Progressive" and "Reform". They will appear in many places.
Senator Lynch-Staunton: Let them fight it out amongst themselves, then, and leave the government and the Chief Electoral Officer out of it. That is my point.
Mr. Kingsley: That is an option.
The Chairman: Another approach might be to have parties register their names and to have a registered trade-mark after it.
Senator Oliver: I have a supplementary question to the questions of Senator Nolin. It is my opinion that three words probably characterize the electoral laws in Canada: Transparency, fairness, accountability. One of the ways that I view you and your job is that you are kind of the chief overseer of finances for parties and elections.
It seems to me that, in view of the responses you gave to Senator Nolin, all this bill does is "open the door for you", to use your words. If you listen to what Professor Stanbury told the Lortie commission about the black hole, and if you concede that up to $200,000 can, in nomination events, be used and not accounted for, that trust funds are not accounted for and that there are other money or financial problems, then now is the time to fix it.
As you know, sir, it takes a long time to get bills amending election laws through Parliament. If this one passes in the year 2000, it may be 2006 or 2007 before we get another crack at it. Why not fix it now? Is it not appropriate to bring in an amendment now that will give you the power and the jurisdiction to oversee all election money in order that Canadians can be safeguarded?
One of the biggest things that hurts the democratic and electoral system we have in Canada today is the secrecy, privacy, and the problems of non-accountability and non-transparency of election and political money. Do you not agree?
Mr. Kingsley: The decision to proceed with the bill the way it was, was made in the House of Commons. They considered the testimony that I presented to them, and came to that conclusion. You have before you the same options, and you must come to your own conclusions about how you will handle the recommendations that I have made in the past.
I do not intend to go any further than I have already. I have gone the limit of my role. I would agree with you that the moment those measures are passed, be it this time or the next time, we will have a much more open system.
Senator Oliver: Your response did not deal with what I asked, so I guess I did not do a very good job of asking the question. Since there are so many evils that are not caught by Bill C-2, would the best thing be to amend it now and get the job done properly now? Do you understand that?
Mr. Kingsley: Oh, I understood that from your previous question, as well. I have answered to you that it is up to you to make that decision. I have done my best to give you the guidance that I can give. I have done by best to give the House of complaints at all, sir.
The Chairman: I do not believe it is Mr. Kingsley's role to suggest amendments. It is not his bill.
Senator Oliver: Both Senator Murray and Senator Lynch-Staunton asked you questions about the lists. Under section 71.34 it says that "...any person is guilty of an offence who requests the listing of the registrar of elections," and so on. You are familiar with the section. It ends by saying, "...for other than purposes described in section 71.35 or political purposes."
Do you have before you now complaints that these lists have been invading people's privacy, and have been used for purposes for which they were not intended?
Mr. Kingsley: I do not have such complaints. I have not received such complaints at all, senator.
Senator Oliver: Really. Thank you.
Mr. Kingsley: I would add one thing. This goes back to the point about the accuracy of the lists. We made a presentation at the Advisory Committee of Political Parties about the concession of the list, about its accuracy at any one time. We went into detail in front of all the political parties. I did the same thing with the House of Commons Committee on Procedure and House affairs, and I am ready to come back to this committee at any time, Madam Chair, to give you the same presentation so that I can address, in a much more intelligent way than I have been able to do this evening, all the questions put to me about the accuracy of the register. I would very much appreciate that opportunity.
The Chairman: I thank you very much for your offer. We will certainly consider it, and we may well take you op on it.
Senator Murray: I cannot speak for the rest of the committee, but I, for one, would love to hear it. As you will have perceived, I am somewhat uneasy. I think that your basic building block must be the provincial electoral lists. You only have one or two for sure, and the others are coming. I am worried about that.
The Chairman: We will consider your offer to make a presentation. I expect you will be getting an invitation.
Senator Fraser: Mr. Kingsley, I am sure you are aware that the Liberal Party of Canada voted at its recent convention to begin the process of extending control over the financing process to the nomination process.
Mr. Kingsley: Right.
Senator Fraser: Life being what it is, and political parties being volunteer organizations, I suspect that we can assume that we will not get the full rigour of this system set up right away, first time out, for nomination proceedings. Given your experience, if the Liberal party were to come and ask you, what would you recommend as the single most important change to make to start out?
Mr. Kingsley: Impose limits and require that contributors be identified.
Senator Fraser: It is that simple.
Mr. Kingsley: Yes, those two things.
Senator Fraser: The bill gives you up to six months to get ready under this regime. Assuming it passes pretty well as we see it, what period of time do you think that you actually need?
Mr. Kingsley: We have not been able to pin that one down completely, despite our planning, because there are extensive portions of work that have to be done, including the registration system and new software that has to be developed. We have to revise. I know this sounds picayune, but there are practically 175 forms that have to be redone. All the training manuals have to be redone. We are talking about hundreds of thousands here. To achieve all that requires a certain amount of time.
As I have explained to previous committees in the past, we do preparatory work only before the statute is passed, when it has reached this kind of stage. We bring stuff to what is called "camera-ready." That is the thinking work, and it so happens that it is the less expensive work. It is when you give out the contract to print that you are actually incurring the big expenditures.
We do not have a final date, but I will tell you one thing. I have made this known, and my colleague from Hill Times will tell you this, and it has been in other newspapers, that I have identified the point of convergence for all of our planning for new systems as September 1, 2000 -- new systems whether or not Bill C-2 passes, because we have new systems whether the bill passes or not.
Everything is computerized now except the act of voting. If ever you are interested, we will share with you all the systems that we have. They are quite sophisticated. We are recognized worldwide as being state of the art in terms of management of an electoral office.
Obviously, depending upon when you pass the law, you being the Senate and Parliament as a whole, I will see if I can meet that point of convergence by asking my colleagues, with the various projects that they have, if they can compress the time, or whatever, to meet that date. I should like to feel that I am ready with this new statute on September 1, 2000. That is the feeling that the Chief Electoral Officer would like to be going to bed with on the night of September 1, 2000.
The Chairman: Mr. Kingsley, I thank you for attending tonight and for answering our questions so articulately.
The committee adjourned.