Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 1 - Evidence for May 3, 2006


OTTAWA, Wednesday, May 3, 2006

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-4, to amend an act to amend the Canada Elections Act and the Income Tax Act, met this day at 4:19 p.m. to give consideration to the bill.

Senator Lorna Milne (Deputy Chairman) in the chair.

[Français]

The Deputy Chairman: Honourable senators, I see a quorum. I believe we should start this meeting rather than keep the minister waiting any longer. He has been waiting now for almost 20 minutes. I just want to remind the members that pursuant to rule 89, the chair is authorized to hold meetings, to receive and authorize the printing of the evidence when a quorum is not present, provided that a member of the committee from both the government and the opposition is present. Since we have quorum, there is no need for us to wait for a government member to show up.

Honourable senators, this is the second meeting of the Standing Senate Committee on Legal and Constitutional Affairs, and we have before us Bill C-4, to amend an act to amend the Canada Elections Act and the Income Tax Act. Bill C-4, as I was just saying in my speech a few minutes ago, is a short but important bill. Some two years ago this committee passed Bill C-3, which dealt with, among other matters, the registration and financing of political parties. Bill C-3 was the government's response to the Supreme Court of Canada's decision in the Figueroa case, in which the court held that the denial of the benefits of party registration to parties with fewer than 50 candidates in an election undermined the right to meaningful participation of individuals in the electoral process, contrary to the Charter. The court gave Parliament one year to replace the provisions that were struck down.

At that time, Parliament added a sunset clause to Bill C-3, under which those clauses dealing with the registration and financing of political parties would be automatically repealed on May 15, 2006. That day is fast approaching but no legislative response is yet in place. The sunset provision will be replaced by a clause calling for a comprehensive review of the political registration and financing provisions of the Canada Elections Act and the Income Tax Act by committees of the Senate and of the House of Commons within two years of the coming into force of this bill.

Passage of Bill C-4 will thus fill that legal void that will otherwise occur in the middle of this month. We have with us today the Minister for Democratic Reform and the Leader of the Government in the House of Commons, the Honourable Robert Nicholson. Welcome to the Senate and to the Standing Senate Committee on Legal and Constitutional Affairs. A point of order?

Senator Joyal: Will there be a representative from the government side for the witnessing of our guest today?

The Deputy Chairman: I sincerely hope so. We have been trying to get in touch with them.

I understand that Senator Cools has indicated that she will come, but —

Senator Joyal: When we had our organizational committee meeting earlier on this week, I remember that we had approved a motion whereby we can hear witnesses even though we do not have quorum, provided that there is a member of the respective parties in attendance.

The Deputy Chairman: That is the part that I just read out, Senator Joyal, but we do have quorum so we can go ahead without them being present.

Senator Joyal: It is a little strange that the government is not at the table when we receive a representative of the government.

The Deputy Chairman: That is right, very strange, but that is not really a point of order.

Mr. Nicholson.

The Honourable Robert Nicholson, P.C., M.P., Leader of the Government in the House of Commons and Minister for Democratic Reform: Thank you very much, and I am pleased to have the opportunity to appear before the committee to discuss Bill C-4.

With me, from the Privy Council Office, on my right is Mr. Dan McDougall, Director of Operations, Legislative and House Planning; and on my left is Mr. David Anderson, Senior Policy Adviser, Democratic Renewal Secretariat.

Madam Chairman, Bill C-4 proposes an amendment to remove the current two-year sunset clause on party registration rules and replace it with a requirement for mandatory review within two years of coming into force. I am proud that one of my responsibilities as Minister for Democratic Reform is to uphold the integrity of the Canada Elections Act, which provides the bedrock of our democratic process. Canada's electoral system is highly respected around the world and party registration rules provide an important element of our electoral infrastructure. Most important, they have played a critical role in ensuring that we preserve at all times the right balance between fair treatment of parties and the need to maintain the integrity of the electoral system. In that context, while this bill is very short, it has a very important objective, and that is to maintain valid party registration rules while at the same time ensuring that parliamentarians have the opportunity to review those rules within a two-year time frame.

As members may recall, prior to June 2004, a party needed to field 50 candidates in one election in order to become registered and have the right to certain benefits under the Canada Elections Act and the Income Tax Act. However, it was necessary to adopt new party registration rules after the Supreme Court of Canada found the 50-candidate threshold to be unconstitutional in the Figueroa decision on June 27, 2003.

The court concluded that the 50-candidate threshold treated small parties unfairly by denying them three key benefits: the right to issue tax receipts, the right to list a candidate's party affiliation on the ballot and the right to receive unspent election funds from candidates.

The court suspended its judgment for one year to allow Parliament to bring forward the necessary changes to the Canada Elections Act. In May 2004, Parliament complied with the judgment by adopting new party registration rules contained in Bill C-3. Bill C-3 replaced the 50-candidate threshold with a requirement that parties need only run one or more candidates to be considered for registration.

The bill also included a wide range of provisions to ensure that only genuine political parties would be considered for registration, including a definition of ``political party'' that states: A party is an organization, one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election; secondly, an increase in the required number of party members from 100 to 250, with a requirement for signed declarations from them; thirdly, a requirement for parties to have at least three party officers apart from the leader and a process for the periodic updating and certification of registry information; and finally, new anti-abuse measures and penalties, including a mechanism for judicial deregistration of organizations that are determined not to be bona fide political parties.

During the parliamentary review of Bill C-3, concerns were raised about certain aspects of the legislation. Some members were concerned that the threshold was set too low and would allow opportunistic groups to seek party status simply to access public funds, and others were concerned about the potential impact of the definition of ``political party,'' since it would involve value judgments about the internal affairs of parties.

In addition, some senators raised concerns that the bill did not address other existing thresholds in the Canada Elections Act that they felt could also be vulnerable to Figueroa-type challenges.

Since it was not possible to resolve these concerns within the court's one-year suspension period, all parties agreed in committee to add a two-year sunset clause to ensure that the legislation would eventually be reviewed.

Accordingly, we are at the point now, if nothing is done by May 15 of this year, that the current party registration rules will be repealed, leaving what the Chief Electoral Officer has called a serious legal void in the Canada Elections Act.

We would be left with a closed party system where no new parties could be registered and no existing parties could be deregistered. Therefore, it is critical that we have passage of this bill, which would replace the sunset clause with a clause requiring a review of the registration rules by a committee of the House of Commons and a committee of the Senate within two years of coming into force. All parties recognize the importance of adopting this proposed legislation quickly, and last week the bill was passed at all stages in the House of Commons.

With regard to the Senate, I am particularly pleased that the bill calls for review by both a House of Commons committee and a Senate committee. I know that the addition of Senate review was a key issue for senators when this bill originally came forward last fall, as it should be. The Senate certainly has an important role to play, and that must be recognized.

I realize that working under such a short deadline is not the most ideal context for reviewing the merits of a bill. However, given that this matter was not dealt with in the last Parliament, and the rapidly approaching deadline, it is clear that we need to make it a priority. We need to act now to ensure the continued viability of the Canada Elections Act. This bill accomplishes that important objective and, at the same time, it will ensure that parliamentarians have the opportunity to review the party registration rules.

Thank you again for your invitation to be here with you. I and/or the officials with me will be pleased to answer any questions.

The Deputy Chairman: Thank you, Mr. Nicholson.

Senator Joyal: Welcome, Mr. Minister. I appreciate your comments about the work of the Senate in relation to the Canada Elections Act. My concern in relation to Figueroa is that it deals with section 3 of the Charter. You well know the substance of section 3. It is entitled ``Democratic Rights'' and it states:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

It is a right so fundamental that is not subjected to the non-derogation clause, section 33. It is one of those rights that cannot be suspended, amended or bypassed by any act of Parliament. It is one of those sections of the Charter that, in fact, questions the principle of the supremacy of Parliament, unless you amend the Constitution, and to amend the Constitution requires a very complex process.

The problem I have with this bill is that it seems to extend for ever the objective of defining the registration system for political parties. As you have appropriately stated, Bill C-3 extended for two years the solution that was temporarily put into place, and now this bill, Bill C-4, does not even contain a deadline. It says only that within two years a committee of the Senate or the House of Commons should consider electoral matters, undertake a comprehensive review and submit a report. We all know that the shelves of the House of Commons and the Senate are stacked with reports that are never acted upon.

I have tried to understand the substance of this bill. It is not a formal commitment to review the registration system of political parties in Canada on the basis of the decision in Figueroa and other decisions currently pending in the courts contesting the Canada Elections Act in relation to Bill C-24.

Why did you choose to leave open-ended the obligation for Parliament to come to terms with this issue when Bill C- 3 contained a clear deadline? Why did you choose to remove the sunset clause and simply expect that one day Parliament will come to terms with the issue?

Mr. Nicholson: Thank you for the question and the comments, Senator Joyal. We are not intending to put in place anything of a permanent nature without a review. We had three options. We could have just removed the section and left the party registration clauses as they are, and this or a future Parliament could have reviewed them. We could have, as you said, replaced it with another sunset clause, or we could have provided for a review process.

I did not make this decision in a vacuum in my other role of the government House leader. We did this in consultation with the other political parties to see what was possible. We were facing a deadline, as you know. Within the next 12 days we would have lost those sections in the Canada Elections Act, and this was the consensus that we were able to arrive at to have this matter passed through the House of Commons quickly.

We did not want to leave the possibility of being in the same position again, with a minority Parliament, being in the middle of an election or some other situation complicating the timing of this. We believed, on a consensus basis, that this was a good approach. I liked and advocated the idea of having the Senate review it also and participate in this democratic process. I am trusting that parliamentarians in both Houses will take on the responsibility that is outlined in this bill.

I take the responsibility for democratic reform and all aspects of the electoral system seriously. I would look forward to any recommendations from both Houses on this. I would discuss it again with my colleagues in the House, presuming that the Thirty-ninth Parliament is still sitting.

Senator Joyal: I understand some of the inescapable facts in the political context in which we find ourselves. However, as I said in debate earlier today, the decision in Figueroa was given by the Supreme Court in 2003. The Supreme Court suspended its decision for one year, and then Bill C-3 was adopted for another two years. That put us into 2006. We now have a review that should be completed within a period of two years, which puts us into 2008. Of course, before Parliament acts on the entire set of amendments to the electoral act, as the substance of clause 1 of the bill proposes, it might be another two years, if we have a majority Parliament, before we have fundamentally addressed the issue.

It will have been seven years, in the most optimistic context, before we will have dealt substantially with what the decision of Figueroa contained as a recommendation.

One has to question, on the basis of a democratic right that cannot be suspended or that cannot be set aside by Parliament, how much we respect the letter of the Constitution if we are to satisfy the obligations under the Charter as interpreted by the Supreme Court. I understand the more or less dead end in which we find ourselves now because of section 26 of Bill C-3, but if you put that in a continuum of where we were at the beginning and where we are heading, it seems to me that there is something wrong in the system if it takes that much time to address an issue that the Supreme Court has considered fundamental in the Charter.

Mr. Nicholson: You made some excellent points, senator. If we could do this all over again, I would have preferred the Thirty-eighth Parliament to have dealt with this, but without going into the details of why it may or may not have been done, this is the situation in which we find ourselves today. Certainly it is not my intention, or that of any of the leadership in the other political parties in the House of Commons, to delay this. If this matter is looked at expeditiously, and I would certainly hope it would be, we would review and look at any recommendations made on that basis. Again, we find ourselves in a situation, because of the election and the nature of a minority Parliament, where we have had to act, and we are asking you to act.

The seriousness with which we take this can and should be noted by the fact that we want both Houses of Parliament to be involved. We are dealing with fundamental issues, so we want to engage all parliamentarians. It is certainly not my intention, and I think I can speak for the other House leaders with whom I have discussed this matter, or their intention to delay this, so hopefully this matter can be looked at expeditiously, and we would look with an open mind at any recommendations for changes on this, or indeed any other matter.

Senator Joyal: Would it not be preferable to have set a specific deadline rather than to leave it open-ended the way that Bill C-4 does? It is open-ended, without any target date whereby we know that Parliament will have addressed this issue.

Mr. Nicholson: Legislation, as I am sure you are aware, is the art of the possible, and in terms of the consensus that we were able to obtain on this, this is what works. Quite frankly, I had no particular problem with either a sunset clause or having it removed. I do not think there is anything particularly wrong with the provisions in the act. Nonetheless, I recognize the need to have it looked at, and I think a two-year period is a reasonable attempt to bring this matter back before parliamentarians and have them deal with it. I think it is a reasonable approach.

The Deputy Chairman: Senator Joyal has raised some interesting points. What will happen if this bill passes in the next few days and one or both of the committees that are mandated to look at the issue just never get around to it within the next two years? What happens if the government itself just never gets around to enacting or bringing in legislation? It truly is open-ended, and we all know what happens with governments and elections and committees that are busy on other issues. Will we have to wait until the Supreme Court once again tells us to get our act in gear?

Mr. Nicholson: We certainly hope not. I am confident that parliamentarians, with the direction given in this, will live up to the responsibility. From just the initial questioning that I have received here this afternoon and from your own comments, I believe that senators — and I believe I can speak for members of the House of Commons — will take this responsibility seriously.

Senator Cools: I welcome you before this committee, as I am sure the deputy chairman already has. I believe this may well be the first Senate committee you are attending upon in your capacity.

Mr. Nicholson: I was here in the early 1990s.

Senator Cools: I meant this time around.

Mr. Nicholson: In this Parliament, no question.

The Deputy Chairman: In your present position.

Senator Cools: In your present reincarnation. In any event, I welcome you.

I should like to probe this a little. This matter was before us some years ago and is not perhaps as fresh as it should be now, but I am wondering about what I would consider to be the parliamentary propriety of putting into law that a committee of one House or the other house should do or must do certain acts. Governments seem to be doing this more and more, and this is something that we should look at seriously. If the government wants a committee to look at a matter, the proper process is for the government to organize an order of reference to that committee. I just do not understand why what would I call these novel constitutional phenomena are occurring, but what I do know is they are growing like Topsy — Uncle Tom's Cabin, Harriet Beecher Stowe. I am not too sure it is a good thing. I wonder if you could share with us why you are doing this, other than that you want some of the issues looked at. You have many means at your disposal as government to have committees look at issues without putting them into a statute or an act.

I must say this leaves me a little uneasy. We have seen some of these so-called references — so-called, because this is what it is. It is an enacted order of reference, which is very odd. I have seen many of these kinds of questions, where something is sent off to committee and the committee is too busy and they never get around to it. If your true objective is to have this studied, this is not a very effective way of doing it. All this says is that within two years, they shall undertake a comprehensive review of the amendments, but that comprehensive review could go on for the next 15 years.

Mr. Nicholson: You asked about my objective, and I think that is a fair question. My objective is to have party registration rules in place so that there is no gap. We are facing a May 15, 2006 deadline. It was not dealt with in the Thirty-eighth Parliament, and there are a number of reasons for that. The consensus among my colleagues in all four political parties was that, despite the fact that it was not dealt with in the previous Parliament, it should be dealt with and it should be looked at. The consensus that was agreed upon was to have a review of this. From my own point of view, I am pleased to see that we have engaged both Houses of Parliament. I believe they will live up to that responsibility. I have no reason to believe that they will not.

As to whether statutory reviews of various pieces of legislation have become more frequent, there are a number of them. I am aware of them. It is certainly not my intention to make this a part of all the bills, or any of the bills, for that matter, that come here, unless there was some reason. It is there now because this was the consensus among parliamentarians, who believed that they did not have the opportunity in the previous parliament to deal with this matter, and that is what you have before you.

Senator Cools: I know; you are telling me that this is a consensus among many people, this is what we should do, but all you are saying is that many people could have come to a consensus with a wrong conclusion. All you are saying is many agree, but what they have agreed to could still be wrong. I am just trying to figure out why we are going down this road. I am sure that there will be many people who would be quite diligent about getting into the study of the issues without such an enactment.

Mr. Nicholson: It is possible.

Senator Cools: I am wondering, because there is a tradition. There is a rule of the law of Parliament that says that governments should not be trying to bind parliaments, and governments are doing this all the time. They even announce that they will pass this bill; more, they are giving the bills names and the name is out there — for example, the federal accountability act. What would happen if someone were to move an amendment to change the name of the bill because it has been so publicized? There is an old tradition that says governments should not pledge Parliament's commitment to anything and governments should not try to bind future parliaments.

Maybe no one else thinks this is a little strange. Maybe everything is going down this road and so it is how it will be, but, Mr. Minister, I must tell you, I have sat here and seen a lot of bad bills pass.

Mr. Nicholson: We want to correct that in this Parliament.

Senator Cools: I have seen those lawyers over in the Privy Council Office and those lawyers over at the Department of Justice giving a lot of bad advice. This is the Standing Senate Committee on Legal and Constitutional Affairs, and all have you to do is read the proceedings of these committee hearings and you will see — not to name any individuals — that we had a period of time, which the deputy chairman will recall, when a particular minister was having difficulty getting bills through this particular committee because so many of them were coming so fast and so furiously and so deeply flawed. I appreciate the position that you are in, and I am sensitive to that, but I am just asking whether this is the best way to go about getting the result?

Mr. Nicholson: I suppose it is a judgment call, Senator Cools. With respect to legal advice that you believe has been rendered with respect to bills that have been before this committee, I am sure there are others who would be in a position to give a more full answer. I can tell you that from the middle of 1984 up until the fall of 1993, I was involved with all Justice-related bills that were introduced into the House of Commons as a member of the Standing Committee of Justice, as its vice-chairman, and finally as a parliamentary secretary. I have to say, since you have raised this matter, that I actually was quite impressed by the legal advice that we obtained. I was quite satisfied with the Justice legislation that was introduced. We introduced quite a few bills and, indeed, I appeared before the Senate on at least one occasion to defend and to talk about some of our legislation and I was quite pleased and proud to be associated with it. I was satisfied with the legal advice that we obtained at that time. Again, I am not in a position to answer as to what type of bills you may have had in the interim. However, I believe what you have here is a reasonable approach to remedy a problem, a situation that has to be addressed.

Again, that is my pitch to this committee. I believe this is a reasonable approach and I would be quite interested in any recommendations that came from this committee in the near future. Those recommendations would be looked at seriously.

Senator Baker: First, I want to welcome the minister to the committee and to note that I have observed the minister over the years and he has certainly made a great contribution to Canada and been a very active member vis-à-vis the Justice Committee in the other place. We all wish him the best in his new position.

Minister, you kept repeating one phrase, ``This is a reasonable approach.'' I would like you to elaborate on that a little. The word ``reasonable'' has been defined in law by the Supreme Court of Canada. In judging what a person's reasonable opinion is, or what a reasonable person would do in particular circumstances under law, the court stated that the reasonable person would be acquainted with the law. In other words, if a Charter issue is being discussed, the reasonable opinion would be that of someone who is acquainted with the particular section of the Charter that was under discussion at the time, so a reasonable decision is made in the end by persons who are familiar with the facts and the law surrounding a particular issue.

That leads to my question. This is a decision of the House of Commons. I want to ask you, did the Liberal Party agree with this bill being passed? Did all parties agree? This bill, as I understand it, relates to a certain laxness on the part of the previous administration. Just looking at the facts presented here, you were faced with a serious problem upon assuming government. This was the result of your discussions and negotiations with the other parties and of full participation by all parties in the House of Commons. Is that correct?

Mr. Nicholson: That is correct. This has the support of all four political parties in the House of Commons. As with any decision of this nature, we do not make it in a vacuum, in the sense that it is just a discussion among the party House leaders. I have the benefit of the advice given to me by the Privy Council Office, and I know you would be in a position to know the quality of the advice that we are given in that regard on this, or indeed any other legislation that we would put in front of you.

I am pleased to have had that advice and I am pleased to tell you as well that this has the unanimous consent of the House of Commons, which of course then includes all four political parties.

Senator Baker: Of course the change is, as I see it — and I have just had a cursory look at it — that you are involving the Senate in this decision?

Mr. Nicholson: Yes.

Senator Baker: Do you think that will encumber the process? Do you think that will complicate or unnecessarily delay the process of consultation, to have the Senate committee acting with the House of Commons committee? Do you anticipate any problems between the Senate and the House of Commons in determining what the solution should be?

Mr. Nicholson: I do not think so. It is important to involve both Houses of Parliament on an important issue such as this. Again, I am pleased — and it is something that I wanted to see in the bill, quite frankly — that both Houses of Parliament will have a look at it and that is the approach we took. Also, of course, it has the agreement of the other political parties.

Senator Rivest: I agree with the approach of the minister, and just want to say that obviously this matter is not at the top of the priority list of the Prime Minister. It is purely a technical problem, but I share the preoccupation of my colleagues, especially Senator Joyal, that the House of Commons must respect Supreme Court decisions, and that is your intention, I understand.

Also, we have to take steps to fulfil all the constitutional obligations in regard to democratic rights. It is a serious matter. Therefore, if we have a consensus among all the parties and a strong will to act to fulfil our legal obligations, I agree with this bill.

Mr. Nicholson: Thank you for that representation.

Senator Cools: No one has any problem with the phenomenon of the Senate playing its full and proper role in the constitutional system. That is a foregone conclusion with which we can all agree. However, it has traditionally been held that much that has to do with elections does not concern the Senate as much as it does the House of Commons. The entire system of the administration of elections has grown out of the fact that elections used to be in the total purview of the House of Commons and used to be run totally under the aegis of the Speaker and others. Some time ago, Mr. Kingsley pledged that at some time he would come to this committee with a summary of that history.

What happens if, in their reviews, the Senate and the House of Commons come to varying opinions?

The bill provides for this taking effect within two years of when the bill comes into force. I take it that if this bill were to be reported in the next day or two and were adopted in the Senate, it would get Royal Assent very soon thereafter and would be in force quickly. Yet Senate committees die upon prorogation and dissolution, so that two years, in our current situation, could keep recurring. The two years could be repeated for a long time if we are not careful. It is constitutionally possible.

For example, let us say that this bill were passed tomorrow, then the Liberals got trigger happy in the House of Commons and another minority government came into power. In such a case, that two years could become three or four years. If this had been studied in the previous Parliament, that two-year time frame would already have been aborted.

How many times can this be bumped for two years? I do not know if these questions have even been thought about, and perhaps none of this will ever happen. However, my experience in life has shown me that when you think something cannot happen is when it will happen. That is how we know there is a bigger architect somewhere.

Mr. Nicholson: Your first question was as to what would happen if there was a disagreement between the reviews of the House of Commons and the Senate. Regardless of how many reviews there are, the government must make a decision, and that is what would happen.

As to how many times this can happen, as you yourself said in an earlier comment to me, one Parliament cannot or should not try to bind a future Parliament. This is before you. We are asking both Houses to look at this issue and this government would be pleased to review any suggestions or recommendations that are made.

Senator Cools: It is crystal clear that you need some help. It is a little late in the day. By the time anything gets here, it is a little late. However, if there were a serious disagreement between the two Houses in reports that the government asked for by statute, it would not be a straightforward matter for the government to choose to agree with one over the other. I do not believe that it is as straightforward constitutionally as you think.

The Deputy Chairman: I am interested in what you propose to have come before these committees in the future. Do you foresee your office or PCO officials presenting an entirely new model for registering and deregistering parties?

Mr. Nicholson: We would wait to see the results of the reviews of both Houses before making any decisions.

The Deputy Chairman: It is hard to review something when you have nothing before you.

Mr. Nicholson: I think it is clear from the bill that we are asking you to review the provisions with respect to party registration, and we look forward to any recommendations that the Senate and the House of Commons make.

The Deputy Chairman: Would you also accept recommendations from a future committee about political financing, as was provided for in the previous bill from the previous government?

Mr. Nicholson: We would be pleased to consider whatever is recommended.

The Deputy Chairman: There might be benefit in looking at both issues at the same time.

Mr. Nicholson: We will be happy with whatever advice is given.

Senator Joyal: Mr. Minister, I have compared the English version with the French version. The English version says:

...the committee of the Senate that normally considers electoral matters, and the committee of the House of Commons that normally considers electoral matters, shall each undertake...

It is very clear in the English version that this is not a joint committee, that those are two separate entities.

The French version is less clear. It says:

[Traduction]

The committees of the Senate and of the House of Commons that normally consider electoral matters shall undertake a comprehensive review of the amendments made by this Act —

The French version does not state ``shall each undertake.''

[Français]

The separation of the two is not that clear in the French version.

[Traduction]

Senator Rivest: In French ``chargés'' is plural. If it were the same committee ``chargé'' would be singular.

[Français]

That is purely a French semantic.

Senator Joyal: I would like you to confirm, if you can, that the bill suggests two distinct approaches — as opposed to separate approaches, as suggested by my friend Senator Rivest — for the review process of the bill.

Mr. Nicholson: It is not meant to be a joint committee; it is two separate committees.

Senator Joyal: I cannot resist mentioning that we would like to have the Senate Ethics Officer and the House of Commons Ethics Commissioner distinct as well.

My other question is about the committee, following up on what Senator Cools has said. Did you or your officials consider that the treatment of a report from a committee of the House of Commons and the treatment of a report from the Senate are different? In other words, in the House of Commons, as I am well aware because of the time I sat in the other place, when a report is tabled, a minister has a certain number of days to answer to the recommendation and explain why he accepts or refuses or delays implementation. There are quite specific provisions in the standing orders of the House of Commons. In the Senate, we do not have similar provisions. A report is placed on the table of the Senate and it stays there. There is no obligation on the part of the government; that is, the government leader in the Senate, to come forward with a specific stand of the government in relation to the recommendations. When your assistants drafted that proposal, did they consider that the work of committees is treated differently in both Houses?

Mr. Nicholson: I am sure that they were aware and apprised me of the differences between the two chambers, senator. There is no question about that. Nonetheless, we welcome the input from both chambers, regardless of the legal requirements associated with reports from either the Senate or the House of Commons.

Senator Joyal: Yes, but you will understand that the Senate will then have a role and responsibility that it will have been vested with by statute, not by an order of the Senate, which could be rescinded. When an order of reference is voted on in the Senate, as in the other place, six months later, the chair of the committee can come and ask for an extension of time, can ask for an additional budget, and can ask for all kinds of authorization in relation to the performance of that act. In this case, it is a statutory order or reference, not the result of a motion, so there is a specific obligation in relation to the work to be performed. Normally, electoral matters fall to this committee, so in fact we are voting ourselves a statutory order of reference to consider Bill C-3 in relation to the registration and income tax clauses affecting political parties. We must clearly understand what we are doing in terms of expectations of this committee and the treatment that we would expect to get from the government if we receive statutory terms of reference to perform a specific duty.

Mr. Nicholson: Senator, I indicated in my opening comments that I take the role and the responsibility given to me seriously. We would not have included this in there if we did not intend to take whatever recommendations come from this body or the other place seriously. That is all I can tell you. We would not have put it in there if we did not want it.

The Deputy Chairman: I would remind senators of rule 131(2):

The Senate may request that the Government provide a complete and detailed response to a report of a select Committee, which has been adopted by the Senate...

Once it has been passed by the Senate, we can ask for the government to respond.

Senator Joyal: However, it is not a statutory obligation as it is in the other place.

Senator Cools: We are dealing here with a statutory order to committees of the Houses, not just the Houses but to committees, to do certain things. I would submit, minister, the fact that it is statutory means you are in a different constitutional position than you would be if it were a mere order of reference made by mere motion of the two Houses. If this is what the government wants, this is what the government will get, but I do not think it is very wise.

Mr. Nicholson: Thank you for that representation, senator.

Senator Cools: It is not a representation.

Mr. Nicholson: I think this is a reasonable approach to the situation.

Senator Cools: Then you will get the bill quickly. That is not at issue. A statutory requirement for certain things is a very different constitutional situation than a mere resolve of any house. Perhaps some of these issues have become so cryptic now that no one knows, and because no one knows perhaps it does not matter. However, I can tell you that when a house is ordered to do certain things, that is a different position. If it is an order of the house, you can go back to the house and revisit the order or have the order amended. You can do all kinds of things. You can even have it rescinded. However, a statute puts it in a quite different position, and, not on this question, but on certain questions, such statutory commands also ride on questions of confidence.

The Deputy Chairman: Thank you, Minister Nicholson, for coming before us. We do have the Chief Electoral Officer waiting outside, so we will allow you to escape and have him come in.

We have before us now Jean-Pierre Kingsley, the Chief Electoral Officer of Elections Canada; and with him is Diane Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel of Elections Canada. Welcome once again. You know the form, Mr. Kingsley, so please carry on about Bill C-4.

[Traduction]

Mr. Jean-Pierre Kingsley, Chief Electoral Officer, Elections Canada: Thank you, Madam Chairman. It is my privilege to appear before this committee respecting its consideration of Bill C-4. As you have already noted I am accompanied by Diane Davidson this afternoon, and if it is acceptable to the committee, I will restrict my comments to the operational requirements of the Canada Elections Act respecting Bill C-4. I will then attempt to address any other question that the committee may have.

The effect of Bill C-4 is twofold: it removes the Bill C-3 sunset provision that is currently applicable to the reforms made to the party registration provisions of the Canada Elections Act by that bill in 2004. And it replaces that sunset provision with a direction for future parliamentary consideration within two years of its coming into force.

Bill C-3 was itself a response to the decision of the Supreme Court of Canada in Figueroa, which had ruled it unconstitutional for the Canada Elections Act to give the right to issue tax receipts, the right to have one's party's name on the ballot, and the right to receive candidates' surpluses only to parties that had secured registered-party status by running 50 or more candidates in a general election.

The court felt that giving these rights only to the larger parties running 50 or more candidates gave them an advantage over the smaller parties. As a consequence the court ruled that the provisions of the act that restricted registered party status to parties running at least 50 candidates in a general election were unconstitutional and had no force or effect.

In order to give Parliament time to respond to its decision, the court had delayed the effective date of its decision for one year to June 27, 2004. Bill C-3 was Parliament's response to the Figueroa decision. That bill essentially did three things: it introduced a general amendment to the Canada Elections Act that extended all of the rights of registered parties, not just those considered by the Supreme Court, to parties that ran at least one candidate in an election. It introduced a number of safeguards respecting the registration of parties to address potential abuses of that extension. And it made those amendments subject to a two-year sunset period, at the end of which those amendments would automatically cease to have any effect. This is the situation we now find ourselves in.

That sunset provision was to provide a period of time over which the effects of Bill C-3 could be observed and considered, and to create a practical requirement for Parliament to return to the issue within two years. That sunset period expires on midnight, May 15, 2006 — very soon — two years after Bill C-3 came into effect. At that time all of the amendments made by the bill will cease to have any effect. If this is permitted to happen, it will result in potentially serious problems for the operation of the act.

[Français]

Technically, Bill C-3 either added new provisions to the Canada Elections Act or it removed existing provisions of the act and replaced them with new provisions. When those Bill C-3 provisions are repealed by the expiry of the sunset period, the act will not return to its pre-Bill C-3 state. It will instead continue, but with holes left wherever a Bill C-3 provision had previously existed. Those holes will appear in a number of important aspects of the act and will, in my view, have serious consequences. To name only some of the more glaring ones: The Chief Electoral Officer will no longer be able to either register or deregister a party on the basis of the number of candidates run in an election. This means that the ranks or numbers of the registered parties will essentially be frozen as of May 15, 2006.

Other provisions in the act that allow for the deregistration of parties for failing to comply with a reporting obligation, for example, will continue to exist, but there will be no authority to register a party that is not already registered or to deregister a party that runs no candidate in a general election.

Registered parties will continue to have the right to issue tax receipts even if they fail to run candidates in a general election.

Parties will be able to continue to apply for eligible party status, the first stage of the process to secure registered party status, but they will not have to provide proof of party members in order to secure that status.

In the event of an election, all eligible parties will have their names on the ballot for the candidates they run but will not get the other economic or operational benefits currently reserved for ``registered parties.''

The definition of ``political party'' will disappear from the act and, among other things, the Commissioner of Canada Elections will lose the authority to initiate deregistration of a group that no longer operates as a political party.

Bill C-3 also introduced a few non-registration changes to the Canada Elections Act that will also disappear at the end of the sunset period, such as the prohibition against soliciting or accepting contributions on the understanding that one will give all or part of that contribution to a non-party entity.

Therefore, it is important that corrective action be taken respecting the sunset provision in Bill C-3 on or before May 15. Bill C-4 addresses these potential problems by repealing the sunset provision of the earlier Bill C-3 and replacing it with a direction that the responsible Parliamentary committees of both chambers will undertake a comprehensive review of the amendments made by Bill C-3 and submit a report to their Houses containing their recommendations.

I will, of course, be happy to appear before this committee or any other committee of the House or Senate to address that issue, and, Madam Chairman, to answer any questions the committee may have, as will Madame Davidson.

The Deputy Chairman: Thank you, Mr. Kingsley. Are there any questions?

[Traduction]

Senator Joyal: Welcome, Mr. Kingsley. In the second bullet on page 2, you identify the objectives of the sunset clause in Bill C-3. You are saying that the sunset clause was to provide a period of time over which the effects of Bill C- 3 could be observed. It is also a realistic requirement by which Parliament must reconsider this matter. In other words, a period of time in which to observe the effects of Bill C-3.

Bill C-3 was passed in 2004. It is now 2006, two years later. The provisions of Bill C-3 were enforced during the last election campaign. The election was three months ago. Based on your experience during the last election campaign, what are the effects of Bill C-3? If our committee was responsible for reviewing the provisions of Bill C-3 and you were to appear before us today, what would you say were the effects of Bill C-3?

Mr. Kingsley: In practical terms, it has enabled a half-dozen parties to maintain their status as a registered political party running fewer than 50 candidates.

Senator Joyal: Could you name those parties for us?

Mr. Kingsley: Yes, I can.

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The Animal Alliance Environment Voters Party of Canada, The Western Block Party, The First People's National Party of Canada, The Libertarian Party of Canada, the Communist Party of Canada, the Marijuana Party, the Progressive Canadian Party, the Canadian Action Party and the Christian Heritage Party.

[Traduction]

Senator Joyal: So, you are saying that the first effect was to enable the registration of political parties running fewer than 50 candidates.

Mr. Kingsley: Or to maintain their status as a registered political party, such as the Christian Heritage Party. In my opinion the interests of democracy in Canada were well served because the candidates running for these parties had the right to put the abbreviated version of their party's name under their candidate name.

Senator Joyal: Did you note other effects of Bill C-3 during the last election? What were they?

Mr. Kingsley: For all intents and purposes, with the requests of new parties, there have not been any effects. The new parties seem to have adapted relatively easily to the requirement to obtain 250 signatures, providing the names of party officers and certifying that their goal was to pursue political interests as required by law. I have not noted any problems. It has not taken any more time to register them than when they had to obtain 100 signatures. We checked this. I am a little surprised, but nevertheless we have not seen any such effects.

There is an effect that we have been unable to assess to date — we will be able to do so in 2007. I am talking about parties that were already registered when Bill C-3 came into force and who will have to resubmit 250 signatures. I cannot say whether parties will run into particular problems.

Senator Joyal: So there have not been any complaints or investigations requiring a follow-up under Bill C-3?

Mr. Kingsley: No complaints have been filed or investigations requested by people outside the process.

Senator Joyal: You have not conducted any investigations? You never came to the conclusion that any of these smaller parties were unable to comply with the provisions in the act with regard to issuing tax receipts or any of the other provisions that apply to parties?

Mr. Kingsley: No, no complaints, no investigations. However, I can tell you — and this has nothing to do with the scope of Bill C-3 — that applicants, in other words any group applying, are investigated by the commissioner with regard to the possibility of fraudulent signatures. Since you used the word ``investigation,'' it is my duty to give you an honest answer. The word ``investigation'' is the one used by the commissioner.

Senator Joyal: Exactly. I used it in its legal sense, in other words in the sense that the act grants you the authority to conduct investigations in the event of an allegation that a registered party was unable to meet the objectives or requirements under the act. I am using the word ``investigation'' in its legal sense with regard to Bill C-3.

Mr. Kingsley: Based on that definition, there is nothing to report. The group being audited or investigated by the commissioner was never registered as a political party. Certain facts were brought to our attention and needed consideration by the commissioner with regard to that group's initial application. This has nothing to do with Bill C-3. The same thing would have occurred under the previous legislation since it required 100 signatures. Whether 100 signatures or 250 signatures are required, fraud can occur.

Senator Joyal: As you know, this is the first time that ``political party'' has been defined. I remember quite well, when you appeared with your assistant, how we came up with a definition of the concept of political party and the requirements that individuals wanting to be called a party had to fulfil. Have you heard representations to the effect that this definition or these requirements — set out in the definition of political party — have been too onerous or limit the recognition of parties?

Mr. Kingsley: No, we have received no such representations. It has been easy for me to accept the statements provided to me by parties wanting to register and obtain the status of eligible party.

Senator Joyal: With regard to the benefits granted in the current context under the political party financing legislation, have you heard any representations that these provisions might have disadvantaged the smaller parties?

Mr. Kingsley: No, none. The only thing, and everyone knows this, is the representation disputing the constitutionality of the two and five per cent thresholds. Obviously, I will not be able to speak to this today because this matter is before the courts, but this is the only thing that, to my knowledge, has taken a legal turn. I have heard no presentations on this matter.

Senator Joyal: Could you tell us what is happening with this case, which is important in terms of election legislation, not only for the smaller parties but for all the other political parties?

Mr. Kingsley: The Office of the Chief Electoral Officer is not involved.

Senator Joyal: You are not involved?

Mr. Kingsley: No, however we are trying to follow this matter as much as possible. I cannot tell you anything more than you already have learned from the newspapers. Nor do I know when this will be heard. Obviously we are following this extremely closely.

Senator Joyal: With regard to the other aspects of Bill C-3 that you commented on, in other words observing the effects of Bill C-3, is there anything else that strikes you in this legislation in particular the provisions with regard to the Income Tax Act?

Mr. Kingsley: I have not noticed anything that I could draw to the attention of the committee; and I would have the responsibility to do so. As I said earlier, it is almost surprising.

Senator Joyal: So if you were asked today to appear in accordance with the mandate that Bill C-4 grants the standing senate committee — as the bill states — that normally considers electoral matters, you would simply suggest that we renew the statutory provisions as they currently exist?

Mr. Kingsley: Bill C-4 in other words? I do not think I understand your question.

Senator Joyal: Under Bill C-4 the Senate committee that normally considers electoral matters shall undertake a review of the amendments made by this act, in other words Bill C-3. The other legislation must be considered.

So if you were to appear before us today under those terms of reference, which Parliament will eventually give the Senate committee, you would conclude that it is simply a matter of renewing, unamended, the provisions in Bill C-3?

Mr. Kingsley: To date, that would be my conclusion.

Senator Joyal: So we would not be called upon to conduct more in-depth reviews with regard to the relevancy and timing of the solution put forward in this legislation in order to satisfy the Supreme Court decision in the Figueroa case.

Mr. Kingsley: If this matter were before you today that is what I would tell you. However in 2007, we will be able to see what happens when established parties, meaning registered political parties, renew and will have to submit 250 signatures. At that point if there are any problems, I will tell you about them. However I do not think that we expect there will be.

Senator Joyal: So what you are saying is that over the next two years you will complete the cycle of requirements that political parties must fulfil in order to register, and then based on that experience you will be able to draw conclusions to confirm or reverse what you are telling us today?

Mr. Kingsley: That is correct, senator.

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The Deputy Chairman: It will be an interesting committee that looks at this.

I have a short question for Mr. Kingsley. What particular issues would you want a Senate committee to look at, to analyze, during this proposed review?

Mr. Kingsley: I had not anticipated that question, obviously. The short questions are always the most dangerous, I find.

Off the top of my head, you may wish to ask me questions about the discretion, was it difficult to apply the discretion of the role of the Chief Electoral Officer in determining if it is a genuine political party; if there were any kinds of problems with the parties reporting. I have answered that question thus far, but at that time you may wish to look at that. Obviously, what we have just discussed; what happened when you renewed the parties, did any of them experience major difficulties. How appropriate is 250 signatures as opposed to another number. Off the top of my head, Madam Chairman, that is the best I can manage today.

Senator Joyal: Would you share with us any reflection you may have in relation to your role as Chief Electoral Officer on the way the last election was run? Or is it too soon since the last election?

Mr. Kingsley: Nothing to do with Bill C-3.

Senator Joyal: No, general comments. We have the opportunity to have you with us here today.

Mr. Kingsley: The last general election, from the perspective of the Chief Electoral Officer, was the best that I have experienced in my more than 16 years in the job. In terms of complaints, because I cannot count the letters of congratulations — not because there are too many, that is not the issue — it seems, and this is a rough estimate, that we are running at about half what we traditionally get from Canadians; sometimes from electoral workers as well, from candidates. We are running at about half, which is an indication.

We always canvass MPs afterwards to obtain their feedback, and other candidates as well, but of what they do freely — of their own volition, in other words — which has a certain import to them, something negative that they experienced, we are running at about half, generally, in terms of complaints.

The Deputy Chairman: That is pretty good.

Mr. Kingsley: In terms of my level of satisfaction as the Chief Electoral Officer, this is the election about which I felt the best.

Senator Baker: Have you examined the indicia that you have mentioned as to whether or not you enjoyed the election or the numbers of complaints and so on, have you looked at it from the perspective of when an election is held? For example, if an election is held in the middle of the winter, you would have fewer problems referred to you than if it were held in the summer, or spring or fall? Could the weather have something to do with it? Could the time of the year? Could it have nothing at all to do with it?

Mr. Kingsley: It could well. You are asking me for a theoretical answer to a theoretical question. It could be attributed to anything at all. What I am satisfied with is the performance. What I have seen come out of it are indicators: the number of problems we had to handle, how we were able to reach out; the fact that the percentage of Canadians who turned out increased by 4 per cent, from 60.9 to 64.7, despite the fact that it was a winter election; the fact that our outreach activities for snowbirds were eminently successful; the fact that Canadians responded to the invitation to attend advance polls, for example, to take advantage of the special ballot; the fact that the numbers of polling day registrants did not increase from the previous election. They were reduced from the 1 million that they were at in 2000 and were maintained at around 750,000, as in 2004. To me these are indices about the list and other things — the fact that we were able to take into account the comments we had received on the previous election because of redistribution and the fact that certain polling places, especially advance polls, were not situated in advantageous locations in the view of some candidates. We were able to adjust for that for the 2006 election. There was sufficient time to allow for that.

All of these things, to me, are indicators of what I call a good election from the management perspective.

Senator Baker: Would you predict that it will keep getting better, to the point where you will not need any supervision at all down the road?

When things are going really well, the first thing you ask yourself is why. Then, when you give an answer now as to why, we can ask you the same question the next election and compare your answers.

Mr. Kingsley: I can tell you that I am looking forward to an even better election next time in light of the things that we will have learned and be able to improve further, because that is the nature of the beast.

In terms of eventually doing away with the job, I do not have that much longer to go, so it is not a major concern personally, but it is like saying to a chain store like Canadian Tire, ``Your sales have increased, everything has increased, so what do you need head office for? Your profits are better than ever, so you do not need the president any more.'' It does not cut it in the private sector and it does not cut it with me.

Senator Baker: I must admit, after the number of elections I have been involved in, that you have fine-tuned things in your office. I do not see the complaints. I suppose it was a new act years ago, and there are growing pains, but certainly, generally speaking, it was a good atmosphere in relation to your office and the exceptional operation of it. Perhaps you are right. You might be doing yourself out of a job.

Mr. Kingsley: I appreciate that. Even with that, we have launched a major review of the functioning of the register, and we have written to you about that. We did that before the election was called, not anticipating that it would be called at precisely the time that it was. We held that in abeyance and had the team survey how the list was functioning.

We will resume that activity so that we can improve it further. I mentioned to you privately, senator, that we need the input of parliamentarians on a regular and cyclical basis, not just at review time. That list is absolutely essential, and it has to perform in a way that is acceptable to the candidates and to the parties. I think we have an acceptable product, but I want it to be significantly improved.

Senator Cochrane: Mr. Kingsley, of that 64.7 per cent of voters who turned out, do you have a percentage of young voters?

Mr. Kingsley: We are working on that right now, Senator Cochrane. The expression I use is that we are ``opening the boxes,'' but obviously that is not the case, as the boxes are gone. We are looking at the list of electors and doing a sampling. At the last election — because we decided we should follow this on a regular basis — we were able to establish that it was around 37 per cent for new youth electors.

Senator Cochrane: That is up from what?

Mr. Kingsley: This was in 2004, and that was up from an estimate of approximately 25 per cent. That was another form of projection, and it is difficult to compare the two. Academics will tell us to stay away from that. However, this time we will be able to see how it compares to the 37 per cent.

I have expressed the view to the media, in Ottawa particularly, that youth had something to do with that increase, in that they turned out in greater numbers. I attributed a lot of the credit for that to the media themselves, because I thought that they did an exceptional job of engaging youth right from the start. On every media you turned to, whether it was print or radio or television, there was something relating to the importance of youth. Letting youth know of their importance translated into a greater rate of participation.

Senator Cochrane: It could very well be our education system, too.

Mr. Kingsley: There are a number of other factors, and we are studying those. We are commissioning studies right now to help us determine through qualitative interviews what it is that gets young people to vote. In other words, we will interview young people who voted, and then we will also interview young people who did not vote so that we have an understanding of both. I do not want to have just an understanding of one and then theorize about how to handle it. I think we need both. In the end, it will engage society. There is no doubt about that. It will engage more than the Chief Electoral Officer. I have been pleased with the role that we have played, but the main stimulus will not be Elections Canada, our publicity or things like this. It will be other things. It will be society. It will be political parties. It will be candidates reaching out to them more. It will be media maintaining their interest. It will be the educational system re- emphasizing the history of this country. To just teach civics without history is like an egg without the shell.

Senator Cochrane: I have the feeling that the younger ones want to be involved.

Mr. Kingsley: What comes out of the studies that we have commissioned so far is that there is no tuning out on the part of youth. They are just deflecting their attention to other things where people care about what they do. It is a matter of re-engaging.

[Traduction]

Senator Joyal: Mr. Kingsley, the Figueroa decision seeks to reduce the number of candidates that a registered political party must run in order to be recognized as such. You already listed these parties. Could you tell us the largest and smallest number of candidates that the smaller parties ran in the last election in order to give us an idea of the impact of the Figueroa decision on the smaller parties?

Mr. Kingsley: Animal Alliance, one candidate; Western Bloc Party, four candidates; First Peoples National Party of Canada, five candidates; Libertarian Party of Canada, 10 candidates; the Communist Party of Canada, 21 candidates; the Marijuana Party, 23 candidates; the Progressive Canadian Party, 25 candidates; the Democratic Action Party, 35 candidates; and the Christian Heritage Party, 45 candidates. I think I have given them to you in increasing order of magnitude.

Senator Joyal: So between one and 45 candidates.

[Français]

In other words, the decision of the Supreme Court is implementable.

The Deputy Chairman: No transcendental meditation?

Mr. Kingsley: They were deregistered several elections ago and did not come back. That is the Natural Law Party.

The Deputy Chairman: Thank you very much, Mr. Kingsley. For those members who have stuck it out, we will be meeting in this room tomorrow at 10:45 a.m. for clause-by-clause consideration of this bill.

The committee adjourned.