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
Senator Lorna Milne (Chairman) in the Chair.
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
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
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
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
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
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
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
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
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
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
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.
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
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
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.
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
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?
Mr. Robinson: Four questions were asked at the House of Commons committee.
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
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
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
The third question that was raised was --
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 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
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
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
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
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
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
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
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
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
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
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
Mr. Robinson: I have understood your views, and will incorporate them into
any future presentations I make on the issue.
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
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.
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.
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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...
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.
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 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
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.
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
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...
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
Senator Murray: You have the motor vehicle statistics from nine provinces and
Mr. Kingsley: Would you like me to send you a note on the totality of the
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
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
Senator Murray: They had an election around the same time as we did, did they
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
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
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
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
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
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
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
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
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 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
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
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
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
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.
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
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
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
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.
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
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
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
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
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
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
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.