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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 8 - Evidence, May 30, 2001

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OTTAWA, Wednesday, May 30, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-9, to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act, met this day at 4:40 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum. Welcome, Mr. Boudria. The minister is appearing before us on Bill C-9, to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act.

Mr. Minister, please proceed.

Hon. Don Boudria, Leader of the Government in the House of Commons: Madam Chair, honourable senators, I have with me, assisting me with your permission, Mr. Michael Peirce and Ms Roxanne Guérard, both of the Privy Council Office, as technical experts.

[Translation]

Honourable senators, I am pleased to have this opportunity today to appear before the Senate Committee to speak to you and to ask you respectfully to adopt Bill C-9, which makes certain amendments to the Canada Elections Act and the Electoral Boundaries Readjustment Act.

As you know, the amendments fall into two main categories. First, we need to amend the Canada Elections Act to comply with an Ontario Court of Appeal ruling in Figueroa, in which the court stated that the provisions on political party affiliation included on ballots contravene section 3 of the Charter.

Second, I would like to take this opportunity to make a few technical corrections, but also to honour a commitment that I had made before this very Senate Committee, I believe.

To begin with, the government must comply with the ruling made by the Ontario Court of Appeal last August in the case of Mr. Figueroa. The court ruled that the government was in violation of the Canadian Charter of Rights and Freedoms by requiring that a party present at least 50 candidates before the party's name could appear on the ballot.

As you will no doubt recall, Mr. Figueroa had said that it was unreasonable to require over 50 candidates and that he was eligible for reimbursement of the election expenses given to political parties even if he had fewer than 50 candidates. The court, however, sided with him on the first issue but not the second.

The court recognized that it was up to Parliament to determine the minimum number of candidates that would be allowed - fewer than 50, of course, since 50 was too high in number - and gave us until August 16 of this year to correct the situation.

[English]

The court concluded that political affiliation could play a role in the choice made by an elector and, consequently, it is important to identify political affiliation clearly on the ballot in order to respect the right to vote. However, the court recognized that the government is justified in ensuring that appropriate measures are in place to prevent voters from being confused or misled. In other words, to say: "Don Boudria from the Don Boudria party," does nothing. It confuses the voter. To quote the court:

The ballot is among the most cherished symbols of our democracy. It should not be a form in which individual candidates, under the guise of listing party affiliation, are allowed to place information on the ballot that could hold the electoral process up to ridicule or advance some purely personal agenda.

A member of the House in committee asked, "Would an example of this be that could say that I am Carolyn Parish from the Remax Realty Party and would that be a way of advertising a business, for instance"? Obviously, the court spoke out on that. In its judgment, the court also stated that a candidate's party affiliation does represent valuable information for voters seeking to make informed decisions, and that electors are entitled to have enough information to make an informed choice. If it is a real political party in the sense of the word, it should be there, even if there are less than 50 candidates.

Bill C-9 is a balanced approach in that regard. It addresses the court's concern in a manner that protects the integrity of the electoral system. To do this, it would lower the threshold to 12 candidates, less one than one-quarter of the previous number.

[Translation]

In our parliamentary tradition, 12 MPs is already a significant number, since it takes 12 MPs in the House of Commons to form a political grouping under the House rules.

That means that a party that has presented 12 candidates would have to have 100 per cent of its candidates elected right away to become a party in the House of Commons. That may be unrealistic, but it is at least theorically possible. So the number 12 in the present legislation already has a basis.

In 1991, the Lortie commission recommended the threshold of 15 candidates. Since 12 candidates is less strict than 15, and if 15 candidates would be enough to comply with the court ruling, we believe that 12 is even better.

In the government's opinion, to have 12 candidates implies that there is an organized grouping - the evidence is that this number is recognized in the House of Commons - taking part in the electoral process because these candidates share a common objective. It is therefore reasonable to talk of a political party without misleading voters. So it is a political party.

[English]

It is high enough to avoid the confusion that could result from having such a low threshold that two people sitting on bar stools could call themselves a political party, to use an exaggerated example, but still not so high that it does respect the integrity of the court's decision. As stated by the Court of Appeal in the Figueroa case:

Voters could also be misled if a ballot indicated a candidate was affiliated with a political party that was in fact not a political party in the real sense of the word.

In other words, to pretend that something is a party when it is not true, does not help the elector. It actually does the opposite. That is why a threshold of one or two, or something like that, I do not believe would satisfy the criteria. Again, I am quoting from the court, which stated:

Political parties are understood to be organizations with members, a leader and a platform. Reference to a political affiliation on the ballot which is in reality no more than a name selected by an individual candidate is potentially misleading.

That is why we did not use a threshold that was so low as one or two. It would not have respected the court's decision any more than the number 50, which they said was not the right one.

We believe that a party should not have its name on the ballot unless it nominates sufficient candidates to make it a "real" party in the "real sense of the word," to use the court's expression. The number 12, for all the reasons I have expressed earlier, does achieve this. We believe then that it is fair to speak of a "party" without misleading the electorate.

In addition, the bill would address an amendment that the Senate wanted, namely, to require the Chief Electoral Officer to obtain the prior approval of a Senate committee before the electronic voting procedure is used for an official vote. During the process on Bill C-2, we were under some time limitation. The Senate agreed, and I thank it, for passing the bill as it was, with a commitment that I would be back at the next revision and correct that. I am now proposing to do so in the bill that I am submitting for your consideration. I hope that this corrects, satisfactorily, the point that was raised by members of this committee and by the Senate generally.

[Translation]

So those are the technical amendments. Changes in terminol ogy have also been made in order to harmonize the provisions of the Canada Elections Act with those of the Electoral Boundaries Readjustment Act. The French and English terminology was not consistent. As you can see, the changes are rather technical in nature and should not cause too much controversy.

In closing, I would like to thank you for this opportunity to appear before the committee and respectfully submit my bill for your approval.

[English]

Senator Moore: Going through the Figueroa decision, and hearing your recommendation with respect to a minimum of 12 members elected to form a party, what is the authority for that? Is it a rule of the House of Commons, or is it in a statute? There was no mention of that possibility in Figueroa. They did not recommend anything, as you indicated. I could not find the reference to that. I know it is the practice, but I do not know the authority. Can you tell the committee about that, please?

Mr. Boudria: It is in the standing orders and has been identified by Speaker's rulings on a number of occasions. It has to do with what the Speaker refers to as a "recognized political party."That is "recognized" for the purpose of being identified as a group in the house, in other words, paying a salary for the whip and the emolument for the leader.

Senator Moore: Are there research expenses?

Mr. Boudria: Yes. Research funds are given on a per-head basis, but in order to make an aggregate of it, to create a research office, then the same number would be used. I am informed that a party that has a recognized membership of 12 is utilized in the Parliament of Canada Act; the Parliamentary Employment and Staff Relations Act, which has to do with the staff of research offices and so on; the Referendum Act; and the Emergencies Act. Those are some of the statutes that use that number.

To my knowledge, no other number is utilized any place else for political parties, other than the number 50, which the court has thrown out.

Senator Moore: Is the key authority the standing orders of the House?

Mr. Boudria: That is one of them, plus the ones I have just described. If I may add, the number that we utilize for the purpose of the House is very close to what the royal commission had identified. As I said in my remarks, they identified 15. The guidance that the court gave us was that it had to have some sort of a "foundation in law" for the number we would use. They gave us language that meant we could not pick a number out of the air. It had to be attached to something.

Clearly, the practice in the House of Commons over the last several decades is well known and it is in the public domain. As a matter of fact, in recent weeks, it was in the public domain as we wondered if a group of dissident MPs, if they reached that threshold of 12, could be recognized as a party. It is quite apropos in the current sense, but in a very different context.

Senator Moore: If there were 12 such people, would they have to make application to the Speaker for recognition as a party; or is there recognition of that entity as one group? You must have had to think about that yourself, wearing your other hat.

Mr. Boudria: Yes. My other responsibility is that of Leader of the Government in the House of Commons. As a matter of fact, that recognition is not quite clear because it has never occurred. It is a little outside of the topic of the bill, but it is fascinating for parliamentarians generally. Roughly, the situation is this: Every time 12 or more members have sat in the house, it was as a result of an election. There were cases where a small group of members left a political party to form their own, but they never reached the threshold of 12 and therefore never asked to be recognized as a formal group. The number 12 is the basis for the requirement.

The two cases that come to mind are the eight members who banded together to form the Bloc Québécois, Jean Lapierre being one of them. They were not 12, so they never asked for the extra emoluments. The other case was the division within the Social Credit Party that caused the formation of Ralliement des Creditistes, but again the smaller of the two groups did not have 12 members and the potential question did not arise.

Speaker Milliken indicated, I believe through his press office, that he would have to rule on it, that recognition was not automatic because it had never occurred, and because no one had been elected in that way. I am paraphrasing him.

The Chairman: Were there 12 members of the Ginger Group back in the 1930s? I cannot remember how many there were.

Senator Stollery: They did not have expenses in those days, so it did not matter.

Senator Fraser: You have responded to some interesting points. I would like to know a little more of your thinking on this line, if that is possible, Mr. Minister.

I understand that the magic number in the House of Commons has been 12 since 1963. Of course, we now have more members in the House of Commons than we did in 1963. One can imagine that the day will come when there will be substantial pressure for this number to be adjusted one way or the other. I can see strong arguments being made one way or the other, depending on how the electoral divisions end up working out.

By reiterating 12 in legislation - you list now a number of other enactments where 12 is the magic number - are you just cementing 12, no matter what? Even if there were a widespread sense that 12 was no longer the appropriate number, would we be stuck because, by that time, it would have become entrenched in law?

Mr. Boudria: That is an interesting question. The number was 12 when the number of MPs was 262. It then became 266, then 282, then 285, if I remember, except once it went down by one, but I am not 100 per cent certain of that. It has grown slightly. After the next redistribution, there could be an increase of five or six seats. That is not impossible. The argument may be presented then that what was proportionately 12 in 1962 should be 15 or 16 today. Perhaps that is so, but members of the House of Commons have never raised it as an issue. An interest in increasing it has never been expressed.

Again, the object of this bill is to use the widest measure possible while, at the same time, respecting that 50 is too high and one is too low. The court had told us both. Between that, we seem to have two numbers that we can use, 12 and 15. Twelve is suggested because it is used all over the place, as I described a while ago. Fifteen is suggested because the royal commission on elections, namely the Lortie commission, had utilized it as a number.

If 15 works and respects the court decision, I would argue that 12 should respect it even more. Therefore, I used the measure that I thought would satisfy, in the best way, the decision made by the court. I believe that this one does.

I suppose the question could eventually be asked: If we increased the number to 15, say, for House of Commons' purposes, would we have to amend this bill? Perhaps that is so, but not necessarily. Right now the number 12 is utilized on the assumption that it would only work if you elected 100 per cent of your candidates, which is, at best, an unrealistic proposition, although technically possible. I suppose we could up it at some point but, for the purpose of this law, 12 does satisfy, and 12 is sufficiently high that it is not one or two, which would do nothing, nor does it allow a person to repeat the name of his party, the name of his street, or the name of his business as being the name of his political party in a way that would confuse the voters. Twelve is a high enough threshold that it has some meaning, nonetheless.

Senator Fraser: Do we know how many parties would have become eligible with this rule that were not eligible under the 50 rule?

Mr. Boudria: No, we do not. It is interesting that, had the 12 rule been there, perhaps independent candidates could have banded together merely because the measure existed. That is highly speculative. We do know that the Communist Party would have satisfied that rule, but not for the purpose of getting funding. The rest is really speculation.

The Chairman: What about the yogic flyer party?

Mr. Boudria: That party satisfied both thresholds. That group of people is an extension of a religious organization alleging to be a political party, some would argue, to get the inherent tax contribution benefit. We amended the act about eight years ago on a proposed amendment by then Member of Parliament Ian McLellan, who subsequently became assistant deputy speaker. He proposed an amendment that, unless a party reached 5 per cent of the votes in any one province, the subsidy would not be given, even if other thresholds were met. The idea was to stop people from calling themselves a political party for the sole purpose of getting money from the Canadian taxpayers.

Senator Prud'homme: This is the subject of my political life. I sat on a House of Commons committee for 30 years studying the Elections Act. I have seen changes taking place and I have objected to some of them. Experience will probably prove that we should have reflected a little longer. As an example, the question of 12 presents quite an achievement with which I do not agree. If it is the wish to use 12 to solve a lot of problems, I say okay, but I will ask more detailed questions of the Chief Electoral Officer about all the paperwork.

[Translation]

All the paperwork that this will entail for the chief electoral officer in dealing with political parties having only 12 elected members. I remember another precedent, that is, when the Bloc Québécois became the official opposition party and they and the Reform Party were running neck and neck with 50 elected members. A decision had to be made as to which party would be the official opposition. Without a vote being taken, it was decided that voters had chosen the Bloc Québécois first, even if it only had 50 MPs. That is troubling, and people never wondered what would happen in the future. We do not know.

I will never change my opinion on electronic voting. Experience in the US is increasingly showing that we are right. However, if the bill comes to a vote, I will support it. But I believe that it is good that senators and elected members are thinking more about electronic voting.

A number of times I questioned Mr. Hamel, the former Chief Electoral Officer, as well as Mr. Kingsley, the current one, regarding the 36-day period. These men are both competent, without a doubt. The reason given for not reducing the number of days was always revision of the list, since it takes a great deal of time and is an incredibly long process. But, suddenly, in the last election - I was right that time - voters were no longer required to register since they could do it on polling day. A whole new system had to be invented to allow Canadian citizens to register at the polling station on election day, if they suddenly decided they wanted to do so and not just if they had been forgotten. After all, there are people who do not like to give their name. They say that they will decide when the time comes, since the act now allows them to register on voting day.

Minister, I predict that this will become increasingly popular. In the most recent election, I acted as an observer. It was incredible how many people waited in line to register on voting day. All they had to show was two pieces of identification in order to register, whereas revising the list takes several days. Your assistants would be able to tell you exactly how many days it takes. There is a process involved and people need to do the work. But all of a sudden, you can now register on voting day if that is what you want to do. It was thought that there would be a few tens of thousands of people that would do so, but in fact there were hundreds of thousands.

I do not know how it was in your riding, since you are well organized and everybody wants to come out to vote for you. And that was the case, given that you got the biggest majority. However, it does not work that way in the big cities that I represent. There are people here representing urban areas, such as Senator Fraser and a few others.

[English]

Has the question of thirty-six days been reconsidered to your satisfaction? It is there solely because of the revision. Has it been revised?

My second question is about the proposed new subsection 68(2) regarding a person who dies before 2 p.m. on the fifth day before the close of nominations. That concerns me. That is found in clause 9 on page 3 of the bill.

My last question is about the ambiguity that I find at clause 14 about wearing any emblem or flag while at a polling station. You know what happened in Quebec. There were fights at the polls because many people wore a Canadian flag. They were proud to wear it for all kinds of political reasons. Is that what we have in mind? If that is the case, how can we reconcile that?

I will ask this of the Chief Electoral Officer. The proposed subsection 166(2) states that a person may wear a badge identifying himself or herself and the party affiliation. In the other clause, no identification at all is allowed. Perhaps I do not understand.

The Chairman: I believe subsection 166(2) refers to candi dates` representatives within the polling station.

Senator Prud'homme: Yes, but this clause is very specific. We do not want any workers to wear signs. You know the process, as do many around this table who have been involved in the political process. We always try not to show any identification. Now we say that everyone can wear a badge.

Mr. Boudria: A number of questions have been raised and I will try to respond. One question referred to the number of seats in the House of Commons and how the process worked. Basically, the Official Opposition is the party that the Speaker recognizes as the Official Opposition. I suppose the reasoning is that utilized by the then Speaker Gilbert Parent. He said that, even if the number of two parties became the same, that does not change the fact that one party was already the Official Opposition and that, unless some party had a greater number of seats, that would not justify dislodging the first party from its previous position in the chamber. That summarizes the logic of the Speaker. It is easy to understand, I think.

The competing party had risen on a point of order, seeking Official Opposition status, arguing that, although they had an even number of seats, more voters had voted for them and that warranted their institution as Official Opposition. The Speaker discounted that. He said that winning seats are counted, not losing votes or something to that effect. That is basically what was used at the time.

As to the number of days of the campaign, I would mention that I have fought a number of them, not as many as the Honourable Senator Prud'homme, of course. I have fought 60-day campaigns. Some people around this table have also organized for 60-day campaigns. I have fought a 50-day campaign. It was that way for some time because of the more modern system of developing the voter's list. It dropped to 36 days after we ceased to have the preparation of the voters' list inside the election campaign period. Once the voter list was prepared outside of the campaign period, fewer days were needed.

How do members feel about the 36 days? Some think that it is about the right length of time. Some still think that it is a bit long. I have heard some say that it was a little short. Of course, those who loose an election always think that, if they had had more days, they would have done better. Those who win always think that they would have been done equally well with fewer days. I should not say "always," but I think that is generally the way people feel.

It is only when the Chief Electoral Officer presents his report to the House on the last election that we will consider substantive amendments to the act. The process works something like this on the substantive amendments. The report of the Chief Electoral Officer is tabled before the Procedure and House Affairs Committee. They hold hearings on it. All registered political parties are consulted. Then the advisory committee of existing parties provide input to the Chief Electoral Officer. I hope that I am not mixing up the order. Then that is submitted as a report, which is tabled in the house. From that, the government prepares the draft legislation that goes through all the tests with which we are familiar, that is, for substantive amendments to the Elections Act.

We are not of course doing any of this here. As a matter of fact, some political parties asked me to include a favourite amendment about this or that in the bill and I declined to do so.

The bill is designed to do two things. It responds to a Supreme Court decision; and it should at the same time correct anomalies in the act. That is a common process. I had made a commitment to honourable senators that I would have a particular amendment in the next bill, and I did that.

I hope that I have satisfied the thresholds to include something of substance without having consulted political parties generally in the regular process. I do not think that that would be the proper way to amend the Elections Act. Therefore, I did not do that. The long and short of it is, substantive amendments could come in future. They always do. There are always some things to be done to make the system work better.

In terms of the two amendments on ballot identification, the one on section 68 concerning the limit imposed on parties to endorse only one candidate per district is amended to replace the phrase "registered party or eligible party" by "political party."

We now have two different kinds of parties on the ballot. One type of party is the one with at least 50 candidates, which then receives subsidy. The other is the one that has 12 candidates and allows a name to be placed on the ballot. The amendments must reflect that. When people walk into the poll, they must be able to represent the candidates, whether they are of one party or the other. The amendment is a consequence of creating this new category of political party.

I hope that my experts here will think that I reflected this adequately.

Regarding the subject of identifiers, there is a prohibition against identifiers, save and except the established identifier issued by Elections Canada. The issue badge is usually grey in colour. The name of the political party is written on the badge always in the same form, the same style, and the same size of letters, so that every one wears that same size and style and cannot use those features as a form of advertizing.

The badge is to identify. It is the same badge, of identical size, that is utilized for election officials as well, except, of course, it does not identify a name of a party. It would bear the title of the official representing Elections Canada, for example, "scrutineer" or "DRO."

Senator Prud'homme: Subclause 14(2) says the contrary.

The Chairman: It is a representative of a candidate in a polling station.

Senator Prud'homme: Yes, with his name.

Mr. Boudria: It is on the prescribed form, the grey sticker.

Senator Prud'homme: Let's turn to the one about the flag. That means an order will have to be given to every worker so that on the day of the election they will not carry anything that pertains to section 14.1. It would need to be a clear directive.

I have gone through 12 elections. We had signs to designate the polling place. The most visible one was the Canadian flag. Once a voter entered, he knew immediately who was working for him. We then said that it was not fair, fights started.

I do not mind. As long as we recognize that an order must be given that the only item allowed is number 2 at the top of page 5 - a badge that is provided by the Chief Electoral Officer of Canada. Very strict directives must be given.

The Chairman: It may be something that we want to ask the Chief Electoral Officer about when he is here later today.

Mr. Boudria: In terms of what the Chief Electoral Officer instructs his officials to recognize as being a sign that is acceptable or unacceptable outside or what is deemed to be a display, those are administrative matters that he directs his officials to do. They are not written in a statute. That is not a new condition.

That is not achieved by the creation of this subsection. This subclause only refers to the fact that there will be two kinds of these in the future as opposed to one. The condition described by Senator Prud'homme has been there for a long time. Of course, it is one that any candidate, or anyone who has worked for a candidate in different polls, may sometimes administer with greater vigour than others might do. They may make people wear a shirt of a particular colour and return home before voting. In another poll, they will allow something that looks remarkably similar to a campaign logo go by and seemingly not object. These things are sometimes left to individual judgment. The Chief Electoral Officer could respond to those in more detail.

[Translation]

Senator Joyal: Minister, on behalf of the staff and my colleagues in the Committee, I would like to express my appreciation to you for having honoured your commitment to the committee, by amending section 18(1) of the old Elections Act that was considered by this Committee so as to give the Senate the same status and interest and thereby ensure that studies to change the voting system in Canada would be submitted for our consideration.

I am sure that my colleagues are also grateful to you for having kept your word and we are pleased to have you here today.

What is your main reason for deciding to go with 12 rather than 49? In other words, if that aspect of the bill were ever challenged in court, would your only argument be the tradition and precedent of the House of Commons?

As you pointed out yourself, the number 12 has relative value that changes over time. If the next study, based on the ten-year census, show that there was a need for additional seats in the House of Commons, the absolute value of the number would decrease in proportion to the increase in seats.

The court weighed an objective criterion, but what are you basing your argument on when you say that a minimum of 12 candidates would meet the test that the court used when it said that 49 was not reasonable in view of section 1 of the Charter?

Mr. Boudria: First of all, 50 does not work and we know why; the court indicated that. The court also told us that setting the threshold too low was not a good approach either.

I will quote part of the court's ruling. I will read it in English since I have it in English in my documents. On page 24, it states:

[English]

Voters could also be misled if a ballot indicated a candidate was affiliated with a political party that was in fact not a political party in the real sense of the word. Political parties are understood to be organizations with members, a leader and a platform. Reference to a political party on the ballot which is in reality no more than a name selected by an individual is potentially misleading.

The court tells us that it is not "one." If it is an individual, it does not work. It must have some sense of being an organization of some sort. The court mentions that if the number is too small, it is misleading.

[Translation]

The court has not given us any clear direction, but it did say that 50 was too high and 1 was too low. So we need to choose a number between those two.

The court's ruling show that the number had to have a basis in law. For decades, we have used the number 12, which appears in decisions of the Internal Economy Board, the Standing Orders of the House of Commons, the Speaker's rulings, the Referendum Act, the Employment Standards Act, and the Parliament of Canada Act. So this number has a strong historical basis in law.

We believe that it complies with the court ruling. Perhaps 13 or 11 would have done so as well, but 11 has no basis in law and is not used elsewhere. But 12 is used in a number of places, as I indicated. It is the strongest number, if I can describe it that way.

In fact, the Lortie commission had recommended 15. Since it was a royal commission, its recommendation carried some weight, I believe. It was created as a quasi-judicial body, which is the status given to that type of commission. So its report carries a certain amount of weight; in fact, the courts have used the Lortie commission's recommendations to support their rulings in the past.

That means that 15 would have also worked, probably. If either number would work, why not use the most generous, the one that gives the most opportunity to groups that want to express themselves and call themselves political parties? Our reasoning could perhaps be summed up that way.

Senator Joyal: If you reread the excerpt from the ruling that you quoted from page 24, the court adds an essential element when it talks about organization.

A political party is more than 12 people who decide to get together and promote an issue just before an election. The way we usually understand it, a political party is an organization with a structure, an executive and a president. It is an organization that sells memberships and looks for broad public support. Through its recruitment campaigns, its visibility, it opens doors and offers people the opportunity to get involved in promoting common objectives by debating issues and taking public positions. That is how I believe people generally see political parties, and the excerpt you quoted on page 24 refers to that.

A political party must have members, and that means more than one person. While still complying with the ruling and in an effort to prevent the legal proliferation of marginal small groups, would it not have been helpful to define political parties in the way that the court invites us to?

Mr. Boudria: That is an interesting point, except there is currently no similar definition for large political parties. In a way, the threshold for the small groups is higher than for larger political groups.

When I was elected in 1984, the party that I belonged to had no membership cards in Newfoundland. I believe that the cards were introduced around 1990.

Senator Prud'homme: There was no federal wing at the time.

Mr. Boudria: It was a sort of primary election, where everyone in the village would come out and elect the Liberal Party candidate. I do not know whether the same thing was done in other parties, but that is the way things were done in Newfoundland until recently.

The Liberal Party has not had national membership cards very long, since at that time it did not consider itself as a party, but rather as a federation of parties. The national headquarters was identified has the National Liberal Federation. Until very recently, we did not even have to live with these stricter requirements.

I must say that we challenged the threshold of 50, and we lost at the first level. We were told afterward that, because it was a first-level court ruling, the courts would understand that a sufficiently high threshold is necessary to identify the group. This means that having 50 candidates is not an unreasonable requirement, given that we now have 301 electoral ridings in our country.

We felt that 50 was the right number, but regardless of what we felt, we lost. Even though that threshold is not too difficult to meet, it was too high in the eyes of the court.

Senator Prud'homme: You have to abide by the court ruling.

Mr. Boudria: We have to abide by the ruling, but now we need to reduce the number to less than 50 and more than 1.

Among the proposals, the one that had a basis in law and that was easily available to us was 12. We could have chosen 15, as well, but that would make it a bit more difficult. But I believe that, given the court's ruling, if we had used a higher figure, like 20, some people would have argued that the number of members needed for a party in the House of Commons should be raised from 12 to 20, since our decision would be based on shaky grounds otherwise.

Finally, determining what makes a genuine party becomes very subjective if criteria other than numbers are used. The only criterion that is already used for other purposes is the number of candidates. To be eligible for funding, a party needs 50 candi dates, and in a democracy, that figure will always be subjective. For ballot purposes, the criterion of 12 candidates is used and does not give any other advantage to the small group in question. For independent candidates, ballots will indicate: "Jean Tremblay, Communist candidate" if there are 12 candidates or more. However, that does not make them eligible for funding.

The issue of eligibility for funding was also challenged; the case was lost in the lower court and won in the Appeal Court. Right now, the case is on its way to a higher level. We are awaiting the court's ruling, and I hope that the matter will be decided in our favour. Otherwise, we will be facing a major challenge, since these small groups would have a right to funding.

[English]

Senator Bryden: If I understand this correctly, in order to have a designation of a political party in a by-election, the party must have run 12 candidates in the prior election. It is clause 12.

If you have a new party, how would you know that it is a party if it has not run 12 candidates at some point? I am not being mischievous. Imagine that there is splinter party that has run more than 12 candidates. You would have a party organized between general elections.

The Chairman: Or a party re-organized and renamed. like the Alliance.

Senator Fraser: Or the Bloc.

Senator Bryden: Are you people going to ask my questions? That is why I do not come here. I never get a chance to ask my questions. They have been waiting for this easy target for a year now.

Suppose that a by-election is called somewhere in the country and the usual suspects run as candidates - the Conservatives, the Liberals, the Alliance. Let us say that certain splinter groups had been meeting informally. For the election, that group becomes formalized. The eight people or 15 people who have splintered off from, say, the Alliance do all of the things that are supposed to be done to become a political party. They have a president, a membership list and they have a name, say, the "New Alliance Party". They nominate a candidate, and that candidate wishes to have his or her name on the list.

Under the reasoning of the court decision, and having done all of this - having made up its principles, having members - do you think that the court would have reason to strike down the refusal of the electoral office to put the name of that new party on the ballot in that by-election? If all tests had been met except that that party had not run in the last general election, would they not have the opportunity to designate their candidate as a candidate for this new party?

Mr. Boudria: One candidate is not sufficient to be called a political party. The court was quite clear in the decision it gave. If a candidate had not run before, and was the only one running now, would it not be equally legitimate to say that is not sufficient to call yourself a political party? The court already said so.

That is the decision with which you are faced. The counter argument is: "There are some of us in the House of Commons of the same group." However, it is not a general election; 12 are not running; one is running; and it is not already a political party. What is the difference between that "one" and the "one" described in the court decision, which said it is an insufficient number? It is still the same number. It is "one."

Senator Bryden: Would that also apply if there were two by-elections held on the same day, and they ran a candidate in each by election?

Mr. Boudria: It would be the same thing.

Senator Bryden: In my reading of it, I believe that the number 12 works. I believe that the courts would likely accept it if you had 12 candidates who had run in the last election. That is prima facie evidence that it is a party. We will accept that. However, I do not think that excludes an argument from some group that legitimately does all of the things that the court mentions.

They refer to the Communist Party. It has a president. It has an organization. It has membership cards. It has all of those things. Thus, it is a legitimate party.

A group could claim that they are a party. They may not have 12 candidates, but it may have more than one candidate. I think a prima facie case has been made out if the group has 12 candidates or more.Fifteen would have the same effect. However, if it is a legitimate political party on other grounds, with more than one candidate, it would be very difficult for us to justify a finding that it is not a party.

Take the situation where a party is reduced. It had run 50 candidates. That party becomes reduced to the point that it can only afford to run 10 candidates, but still considers itself a party. They are legitimate candidates. The party has a head office, phone numbers and all of the things referred to in this bill. Even if the party does not meet the 12, I doubt very much the courts would hold that they do not have the right to a designation.

Senator Moore: That is what Mr. Figueroa wanted. That is what prompted him. The other Communist Party was stronger than his, and his was diminishing in membership. That is why he ended up going to court, and he failed on that count.

On a point of order, Senator Bryden, if I were in that situation with 12 members and we had someone who wanted to run in a by-election, there is nothing to stop those 13 members going for nomination. Once 12 are nominated, you have reached the minimum to have party affiliation on the ballot.

Senator Bryden: My problem regards a by-election for one seat. A party may not have run 12 candidates because it was just created or splintered from another party, but if that party wants to put someone on the ballot in a by-election as a designated candidate, then that it is not a case of adding some names. I think the courts will have difficulty saying no and disallowing that candidate's affiliation to that party.

Mr. Boudria: We still go back to the premise that the number must have some basis in law.

Senator Bryden: You legitimately have a number?

Mr. Boudria: That number 12 does have a basis. If a party runs one candidate and claims to be a political party anyway, and wants the number one to work for them, then the courts would say: "Wait a minute, you think may think it works for you but still that number has no basis in law. You cannot aspire to be a party in the House of Commons; you cannot do this; you cannot do that."

The number which that party would advocate is the proper number for the rule in that particular by-election. One simply does not work. Nowhere else does that number exist. Referring again to the previous decision, "one" has no basis in any other law, statute or practice.

There have been two instances of the kind you describe that would have affected what we are doing now, had the law been in place. I refer to the cases of Mr. Duceppe and Ms Deborah Grey. Deborah Grey was elected as an independent. I do not think she had a political ticket at the time she was elected. Certainly Mr. Duceppe did not have a political ticket. As a matter of fact, during his campaign, they were still debating what they would call themselves. He simply ran on the ballot as an independent. I think the name "Bloc" developed around that time. They did not even claim to be a party, if you will remember. They said they were not the same because some of them were from the right and some were from the left. What they had in common was that they were a bloc, as opposed to a party, for the purpose of promoting Quebec sovereignty. That is why they thought "bloc" referred to their structure, as opposed to a political party. The curious situation developed that the group did not even want to be a party, but later of course they changed their minds.

Senator Bryden: What would have happened if they had said that they wanted to be designated as a legitimate party?

Mr. Boudria: At the time they did not meet the 50-candidate threshold. Their candidate was elected. The ballot identifier is a useful tool but it is not the only tool. In a subsequent election, the Bloc met all thresholds and ran a full slate of candidates. Then a sufficient number were elected so the Bloc became a party, recognized pursuant to all the house rules and the other practices which I described some time ago.

No one could argue that the rules prevent the creation of new political parties. Two of the five political parties existing in the House of Commons today were not even there 10 years ago. At this point, we are not even sure if there are two such parties or two and a half such parties.

Senator Moore: I want to get something on record here. In the House of Commons, a party must have a minimum of 12 elected candidates to achieve recognized party status. Is that correct?

Mr. Boudria: Yes.

Senator Moore: Under the Canada Elections Act, a party must nominate a minimum of 12 candidates in order to have the name of the political party affiliation on the ballot next to the candidate's names. I want to get the registered political party terms lined up properly here.

To qualify under the Elections Act for the rebates and so on after a general election, a registered party must have a minimum of 50 candidates nominated. Is that the line-up?

Mr. Boudria: Yes. I think the exact words are "registered" as 50, and "political party" as 12 for the identifier, and the House of Commons parlance is "recognized" when the party is recognized by the Speaker.

The Chairman: What then is an eligible party?

Mr. Boudria: I am told that a party is an "eligible party" from the time that it applies to be a registered party until such time as the 50 candidate nominations are achieved. In other words, the party is eligible to become a registered party.

Senator Buchanan: Minister, I have a question that perhaps you have already been asked in another forum. There may be a contradiction between two sections here. You probably heard about this. Mr. Peter MacKay believes there is a contradiction between section 323(1) and the proposed section 335(1) in the use of the term "midnight." Is "midnight" the beginning of a new day or the end of a day? If midnight is the beginning of a new day, then proposed section 335(1) contradicts section 323(1).

Mr. Boudria: The officials are digging up the information as we speak. The issue was raised in the Commons Parliamentary Committee. Two different terms were utilized. I have the transcript here of the second appearance that I made before the committee which I utilized for my answer.

Perhaps I will read this into the record to assist the chair and all honourable senators. When reading the proposed section 335 of Bill C-9 in conjunction with section 323 of the Canada Elections Act, Mr. MacKay was wondering why there was no harmonization in the drafting of these provisions. This is the reason: Section 323 is drafted as a prohibition. Section 335 is drafted as a permission. That is why the same wording is not used.

The opinion we have received is that the provisions are harmonized since they both take into consideration the fact that the blackout period has been reduced to polling day. These two provisions deal with, as you will remember, the rather extended blackouts. We have done away with all of them except for polling day. We decided some years ago that the people in one part of the country should not think that the election was decided before they could even contribute towards the process. Western Canadians particularly felt profoundly about that.

To address that problem, we harmonized the voting hours across the country, although there is still one hour for British Columbia. That was done to make Canadians feel that their contributions were equal, regardless of where they lived. Even in the case of British Columbia, by the time you have any result, it takes almost a hour, so they will have finished voting there. You could argue that it works there with one hour.

When we did away with the longer blackout provisions, as a result of the Thompson decision, if I recall correctly, there was a curious situation on election day where you harmonized all the rules to ensure that everyone's vote was the same and that you did not have results in one part of the country influencing the other. With the exit polls, there was absolutely no way of doing that except to have a prohibition on election day. Therefore, you have prohibition on advertising on election day and a prohibition on the taking of public opinion polls to ensure that what we had done only a few years earlier, particularly at the request of Western Canadians, was lived with. Otherwise, it totally undoes that which we had been trying to do for years. I hope you understand the reasoning that I am expressing.

The Chairman: Minister, I think the confusion is as to whether midnight is the beginning of a day or the end of the day. Midnight on the day before polling day, is that 24 hours before the start of polling day or is that the start of polling day?

Mr. Boudria: On polling day.

Senator Buchanan: About two weeks ago, either on The Weakest Link, or on Jeopardy, or Who Wants to be a Millionaire, the question was whether midnight was the beginning of a day or the end of the day. Unfortunately, I cannot remember the answer.

The Chairman: For polling purposes, what is the answer?

Mr. Boudria: The prohibition is for the entire polling day, starting from midnight and including that particular day. It ends not with midnight, but when the polls close.

Senator Buchanan: Is there an interpretation of what "midnight" means?

Mr. Boudria: Perhaps the official who is with us could read us the appropriate clause. The prohibitions are state clearly that it is election day, and that it ends at the closing of the polls.

Senator Buchanan: It states that it is midnight on the day before poling day, which would be Monday. Does that mean Monday is excluded entirely, or does it mean that it ends at midnight on Monday or begins at midnight on Monday?

Mr. Boudria: In the period beginning on the issuance of the writ for a general election and ending on midnight on the day before polling day. It is 24 hours.

Senator Buchanan: Could "midnight" mean the beginning of the day before polling day or the end of the day before polling day? In other words, is there a legal interpretation of what "midnight" means?

Mr. Michael Peirce, Director of Legal Operations, Privy Council Office: To respond, I do not believe there is any legal dispute about this. It may be an interesting question for television game shows, but there is no legal dispute. It clearly covers the period from the dropping of the writ until the beginning of polling day.

Senator Buchanan: The beginning of polling day. You are saying that the beginning of polling day means midnight.

Senator Moore: He is saying midnight is the end of the day.

Senator Fraser: Do you have legal authority for that?

Mr. Peirce: I can dig up legal authority for it, but I think the interpretation is clear when you take all the provisions together. These are the broadcasting provisions. They have to be interpreted consistent with the blackout period that we have outlined. When you put those two together, there can be no legal dispute about the interpretation.

Mr. Boudria: I am no expert on midnight, but it would seem to me that 2400 hours is after 2300, and then you start at 0100. It has to be on the same day as 2300.

Senator Buchanan: The same question arose about whether 2000 was the beginning of the new millennium or not.

The Chairman: I have just been told that there was an enormous discussion in the Nova Scotia legislature on what 12 p.m. meant. Was it 12 noon or midnight? The discussion went on for days.

Senator Buchanan: It hit the papers. It was just last week. Nova Scotians are pretty smart.

The Chairman: I thank you very much, Mr. Minister, for spending so much time with us and for including that provision in this bill. We do appreciate it.

Mr. Boudria: Thank you for the invitation to appear before your committee. I would also thank you in advance for the consideration you will give to this bill.

The Chairman: We now have appearing before us Mr. Jean-Pierre Kingsley, Chief Electoral Officer. With him is Ms Diane Davidson, Director of Legal Services, Elections Canada, and Ms Janice Vézina, Director, Election Financing. Mr. Kingsley, please proceed.

Mr. Jean-Pierre Kingsley, Chief Electoral Officer, Elections Canada: Distinguished members of the committee, and Senator Prud'homme, thank you for allowing me this opportunity to share with you my views on Bill C-9 and, along with my colleagues, to respond to any questions you may have.

Bill C-9 proposes two types of changes to the Canada Elections Act. The first type is of a technical nature. They are amendments designed to correct certain details of the new Canada Elections Act that came into force on September 1, 2000, prior to the most recent general election.

I should like to draw to your attention in particular section 18.1 of the Canada Elections Act, as amended by Bill C-9, which would require the approval of the committee of the Senate, in addition to the committee of the House of Commons, that normally considers electoral matters, if I were to propose the use of a new electronic voting process for future use in a general election or a by-election. This is consistent with what I had already expressed in a letter to this committee last year, June 7, 2001. As a matter of fact, in that letter I offered to appear before the members of this committee to discuss any proposal regarding the trial of an electronic voting process, despite the fact that there was no legal requirement to do so.The technical amendments proposed by Bill C-9, such as the one I just described do not raise any concern with my office.

The second type of change goes more to the substance associated with the Canada Elections Act. Bill C-9 would amend the act so that the option of indicating the political affiliations of candidates on the ballot is no longer limited to candidates of registered parties. I will confine my comments to the proposed amendments regarding the indication of political affiliation on ballots because I believe that they raise certain important issues.

This matter of political affiliation of candidates on the ballot was first raised when the Communist Party of Canada led by Miguel Figueroa brought an action in the Ontario Court (General Division) against the Attorney General of Canada, arguing that the requirements for party registration operated to the detriment of small political parties. Mr. Figueroa challenged the constitutionality of the requirement that half of the $1,000 candidate nomination deposit be refunded only if the candidate received 15 per cent of the vote cast in his or her electoral district; the automatic deregistration upon failure to endorse 50 candi dates; the requirement that only candidates of registered parties be entitled to have their party's name on the ballot; and the liquidation of the assets of the registered party which failed to nominate 50 candidates. Mr. Figueroa was successful on all issues at first instance.

The Attorney General of Canada appealed this ruling with regard to the 50-candidate threshold to be a registered party, and the issue of having the party affiliation on the ballot. The nomination deposit and the automatic deregistration and liquidation of assets were, in my view, fully addressed in Bill C-2.

On August 16 of last year, the Ontario Court of Appeal rendered its decision and held that the principle of party registration with its benefits confined to parties that nominate at least 50 candidates in a general election was constitutional.

To refresh your memories, the major benefits offered to registered parties are as follows: the right to issue tax receipts; the right to reimbursement of a percentage of election expenses; the right to receive excess funds from candidates; the right to participate fully in the system for allocating broadcast time to parties during peak audience periods at preferential rates; and the right to receive the final lists of electors.

The Court of Appeal agreed that these benefits should be reserved for political parties that demonstrate a certain level of commitment to them. The court further agreed that the condition of supporting 50 candidates is a reasonable yardstick for assessing that level of commitment.

Certain aspects of the court's decision concerning the benefits reserved for parties that have nominated at least 50 candidates are being appealed to the Supreme Court of Canada and, more precisely, the right to issue tax receipts.

On March 15 of this year, the Supreme Court of Canada granted Mr. Figueroa's application for leave to appeal. Therefore, I do not plan to dwell on that particular issue before this committee. However, the Ontario Court of Appeal considered the possibility of candidates having their political affiliation indicated on the ballot to be a separate issue from those benefits which I have just listed which are granted to registered parties. As a result, the court found the provisions of the Canada Elections Act allowing only candidates of registered parties to indicate their political affiliation on the ballot to be of no force and effect.

According to the Ontario Court of Appeal, reserving the identification of political affiliation for registered parties is an infringement of section 3 of the Canadian Charter of Rights and Freedoms, which includes the rights of all electors to vote in full knowledge of the facts. In the court's opinion, the right to vote implies the right to full and complete information necessary to vote in full knowledge of the facts. According to the court, a candidate's political affiliation is not only necessary information for an informed vote, but also basic information for electors.

In referring to the Communist Party of Canada, the court declared, at paragraph 124 of the judgment:

The CPC is a recognized political party within the common understanding of that concept. It has a leader, officers, a membership, a platform, and it chooses and supports candidates for election. The CPC is prepared to register and thereby to subject itself to the various provisions which regulate the identification of party affiliation on the ballot. By denying candidates of the CPC the right to show their party affiliation on the ballot, the legislation does nothing to avoid confusing or misleading voters. To the contrary, it denies them information which could assist in determining how to cast their ballot. Some, and history suggests only a few, will want to cast their ballot in favour of the candidate because he or she is endorsed by the CPC. Others, and history suggests the vast majority, would never vote for a candidate endorsed by the CPC. In either case, the voter will be assisted in making an informed choice if the candidate's affiliation with the CPC appears on the ballot.

[Translation]

As the Ontario Court of Appeal implies, the Communist Party of Canada meets all the legal requirements for recognition as a political party in the true sense of the word. After all, it had a leader, an executive, members and a political platform.

The court chose to leave it up to Parliament to legislate on the issue of when political affiliation should appear on the ballot, given the complexity of the act and the interaction among the various legislative provisions in this area.

However, it is worth noting that the court made its comments with the knowledge that in the 1993 election, the Communist Party of Canada presented only seven candidates and that it did not have any in the 1997 election.

In response to the Figueroa ruling, Bill C-9 proposes that any party that meets the requirements that apply to eligible parties and that presents at least 12 confirmed candidates in a general election should be allowed to indicate its name on ballots in subsequent elections. In this way, only the names of parties that have sponsored 12 candidates in the preceding general election could appear on ballots in a by-election. Candidates for a political party created after a general election would therefore not be allowed to indicate their political affiliation on the ballot.

I have already indicated before the Standing Committee on Procedure and House Affairs that I believe a single candidate representing a political party at a by-election should be allowed to have his or her political affiliation on the ballot, provided the party has fulfilled the requirements of the act.

It follows logically that a single candidate representing a political party at a general election, should also be allowed to have his or her political affiliation on the ballot, provided the party has fulfilled the requirements of the act. I trust that these observations will be helpful to you.

The observations we have been able to make on how the electoral process worked under the scheme of the new Canada Elections Act during the 37th general election of November 27, 2000, and the consultations we are conducting will allow me to present Parliament, this fall, with recommendations on legislative amendments that are more thorough than those proposed in Bill C-9, amendments that I consider essential to maintaining the fundamental principles of our electoral system.

My colleagues and I will now be pleased to answer your questions.

Senator Fraser: Are you suggesting that we have an amendment?

Mr. Kingsley: I am here to present my point of view and to tell you that to my mind, even if the Ontario Court of Appeal has not ruled on the number and has left this up to Parliament, my advice is that a single candidate should suffice when time comes to include the name of the party on the ballot. To meet this fundamental requirement that the court has identified, namely that the voter has a right to know the political affiliation of the candidate. Whether or not you decide to proceed with an amendment is entirely in your hands, but there's obviously a suggestion implied in what I have told you.

Senator Fraser: You follow the debates in the House of Commons and therefore the logic according to which 12 is a number that is well anchored in our habits or customs in legislation, which makes it a logical number. Why didn't you find those arguments convincing?

Mr. Kingsley: Because to my knowledge, the number 12 only applies in the case of agreements in Parliament concerning the recognition of a party for supplementary funding purposes. These are 12 elected people. Here we are talking about candidates. The court's change applies for a party that has very little chance of electoral success. Therefore, the 12 elected members argument does not even spring to mind.

Why 12 candidacies would be equivalent to 12 elected members, I do not know. In other words, I was never able to make the intellectual link that would allow me to be comfortable with the number 12.

Pursuant to the court's ruling, I felt that one would suffice, especially if we recognize the fact that political parties can be formed very quickly and in accordance with the needs of the voters. We have seen in the history of Canada as well as in more recent history that there can be by-elections at any time and that these political parties would not be allowed to indicate the names of their candidates.

I was also very impressed by the argument presented by the representative of the Christian Heritage Party to our advisory committee on political parties. He said that during the last election, the Christian Heritage Party was not able to identify its candidates with the name of the party because it did not have 50, and that one voter had told the party leader that even if he had recognized that the candidate was the same for the party, he would have voted against this person because he thought that the party name didn't appear because the candidate had changed political affiliation.

You may say we can't pass laws based on a single person. But nevertheless, I was impressed. I ask myself what the other side of the coin was, that is, what damage would it cause to require a single candidacy if we achieve the court's objective to identify the party with which a candidate is affiliated?

Senator Fraser: Supposing the party followed...

Mr. Kingsley: ...everything required under the Canada Elec tions Act. We are not talking about an informal groups that got together and wanted to have names on the ballot. There are requirements, according to the law: there has to be a leader, that that leader be registered, that there be 100 signatures verified by my office. There has to be an official agent, an auditor and have to submit regular reports and update their files like everyone else.

If these people follow the rule, according to the law, I think that a single candidacy should suffice for the Canadian voter to be aware of the political affiliation of this person.

Moreover, and this is my conclusive point, all the other benefits resulting from the formation of a political party which have some impact on the public coffers are reserved only for parties that field 50 or more candidates. We will see what the Supreme Court says about the number 15, but all those benefits are a separate issue.

The Ontario Court of Appeal has rendered a useful decision in the sense it has allowed us to identify that it is possible to have a certain number for one purpose, under the Elections Act, and another for another purpose under the act. That is a concept I had not thought about and that I find extremely useful, because the scope is not the same. This is why I felt that a single candidacy would suffice.

I also thought about the formation of the Marijuana Party, for example, which formed very rapidly at the federal level and that did manage to field 79 candidates. That party could have started off very slowly through by elections. I felt that whether it's one party or another, a single candidate should suffice for the name to appear on the ballot.

Senator Fraser: I imagine that you presented these arguments before the House of Commons committee?

Mr. Kingsley: Not in as much detail, since I was not questioned about as many details.

Senator Fraser: But you were able to discuss it in some depth?

Mr. Kingsley: I certainly had an opportunity to say what I thought. Members can do whatever they see fit with my advice, as the Senate committee will also do.

Senator Prud'homme: If they understood.

[English]

Senator Pearson: I must confess that I find your argument quite persuasive, particularly since the distinction has now been made about expenses. One person is allowed to present himself or herself as an independent. You are allowed to call yourself that, are you not?

Mr. Kingsley: Yes, if you are alone and wish to be alone, you can be called an independent or you can be called nothing. You have a choice.

Senator Pearson: There is nothing that prevents you from putting "independent" on the ballot, so there should be no impediment to indicating the name of the party. As you said, it is information. A voter looking at a list has some idea of who is running, although they may not know what is meant by "Rhinoceros." It is an interesting point. It will still cost those people more than others because they will have to come up with their own down payment, so to speak.

I realize that one of the constraints we have is that the court has only given the government a certain number of months to change this.

The Chairman: It will be quite a few more months.

Senator Pearson: I just want to go on the record as saying that it makes sense to me.

The Chairman: However, if the Chief Electoral Officer, as he has said here in his speech, makes a presentation to Parliament this fall with recommendations on legislative amendments that are more thorough than those proposed in this bill, he may have another chance at the same premise he is putting forward.

Senator Fraser: It would have to be in another session.

The Chairman: It can be part of another bill. His proposal will not have been turned down because it will not yet have been made.

Senator Fraser: I was particularly struck by the argument of negative information. Who would ever in their wildest dreams wish to vote for a person from the Marijuana Party, or whatever? These are substantive issues.

Senator Atkins: I agree with Mr. Peirce. There is an assumption here that identifying the party is a plus. It may very well not be. I see no harm in you proposing this in whatever amendments you bring forward in the fall.

The only other comment I would make is that it is too bad that, when talking about rights and benefits, there is no way of dealing with the debate argument. I have been in 38 election campaigns in my career, and I know that that is the biggest issue a candidate deals with in preparation for a campaign.

Mr. Kingsley: I am not following you.

Senator Moore: He is referring to leaders' debates.

The Chairman: We should define debate issues.

Mr. Kingsley: There will be no recommendations in my report on leaders' debates.

Senator Prud'homme: I would refer to page 11 of the English text and page 12 of the French text. They are not the same. I would like to know which one is correct. Is it the English or the French?

[Translation]

Mr. Kingsley: I only have my text in both official languages. We will therefore wait to have the text in each of the two languages. We gave everything we had to the clerk of the committee and I only have one version.

Senator Prud'homme: There is no problem, you will see it right away, in English and in French. I do not know which one is official.

Mr. Kingsley: The word "by-election" is missing in the French.

Senator Prud'homme: I would like to make a suggestion. Senator Atkins, who has a great deal of experience in election organizing, said that he had listened carefully to the statements made by Ms. Pearson, who had correctly understood the spirit of what Mr. Kingsley told us.

[English]

You know what I said earlier. Fifty candidates was the minimum. I went further. The law should be 50 candidates in at least three provinces. This may sound tough for some to be a recognized party and to receive money. You would need to find 50 candidates in at least three provinces. However, I have lost that argument. The Péquistes were happy that I lost, but I did not necessarily have them in mind.

You do not want to amend, as we have heard. If there were a majority of the same opinion as Mr. Pearson, I would join that group. However, the committee can express its opinion. We have good drafters. We would let the Senate know about the views expressed by Mr. Kingsley and, in our report, we could explain our reasoning and mention our expectations for the future. That would show the House of Commons that we went through the bill thoroughly, but that we did not want to impose a burden on them by amending it, as we could have done.

By the time the Senate completes third reading of this bill, the House may have adjourned, and they would take any proposed amendment as a slight.

Mr. Chairman, I would ask for consultation with your able staff. I do not think there is anything wrong in doing that.

The Chairman: I am conferring. I am following through on your reasoning. We can attach observations as well.

[Translation]

I think that we can recommend that the House pass the bill without amendment, but with suggestions, and this should be done not necessarily as part of a speech but in the report to the House.

[English]

The Chairman: I would suggest that we offer observations rather than recommendations.

Senator Prud'homme: I would prefer to use the term "recommendations," but I will not insist. If it is included as part of the report, the committee can do what it sees fit.

The Chairman: We can deal with this in our clause-by-clause consideration of this bill next week. I think Mr. Kingsley is quite aware that he has been persuasive. He is also aware that he has another kick at this can in the fall.

Senator Prud'homme: The 36 days are in the mill, so perhaps we will have time to discuss that this summer before your full report. The 36 days was intentional because of the revision. Time is needed for the revision.

Canadians seem to prefer to register on the day of the election, therefore bypassing all the revision offices. Do you think that it would be fair and possible to run a 30-day election in the future?

Mr. Kingsley: I should like to wait until the next general election is finished and we have improved the register of electors before formulating a view on that. I will be formulating views on what I think should be happening with polling day registration and about how we can tighten up that process somewhat.

Senator Prud'homme: I read your report. I went to court many times representing Liberal Party, and I won on the redistribution. I am not arguing against you.

We now have a census. The census will open up avenues for commissions.

You sent us a very good calendar, but I did not see the earliest possible date for an election.

Mr. Kingsley: July 1, 2004 is the earliest that an election could be called to have the effects of redistribution.

Senator Prud'homme: All the returning officers would have been appointed and instructed.

The Chairman: That is, with no hic-ups in the process.

Mr. Kingsley: If there were no delays by any of the bodies authorized to request delays, that would be the earliest date.

With respect to returning officers, I cannot guarantee that they will be appointed in time. I have nothing to do with that. It would be entirely up to the Governor-in-Council to act on that front. I must assume that they would be in place because they have only 90 days to do something about that, but that is a possibility.

Senator Prud'homme: Sir, in your experience, even though the earliest date for an election would be 2004, it is unlikely. In the last 40 years, it has always taken seven or nine years. We always thought it would apply to the next election, but it was always the election after.

The Chairman: Things always take more time than you think they will.

Mr. Kingsley: There has always been a suspension of the law to this point. The calendar that I sent to you does not take into account the possibility of suspension. It only addressed the issue of any requested delays. I am saying, "if no delays are requested by any of the bodies authorized to do so." None were requested the last time, so it is a plausible scenario, which is what I tried to address in the calendar that I sent you. However, I also though that it was very important for all of Canada to know that, for the effects of redistribution to take place, the next election would have to take place after July 1, 2004.

The Chairman: You were setting up the boundary posts in advance.

Mr. Kingsley: That is one of the jobs of the Chief Electoral Officer.

Senator Fraser: Since I was the one who first started delving into this matter of party affiliation on the ballot, I would like to put on the record my understanding of the Senate's philosophy in general, and certainly my philosophy on these matters.

I am - and I think we are - extremely reluctant to amend an electoral provision in substance if it has already been approved by the House of Commons. We do not do that lightly around here. A general exception would be if a provision was just so badly drafted that it made no sense, or if it contained some grievous infringement of human rights.

I have not really thought through this argument. I have been trying to go through the Figueroa decision from the Ontario Court of Appeal while I have been listening. It occurs to me, though, that the case before us is almost at that point. However, again, my preference would always be, on a matter of substance affecting elections, to let the Commons tackle this in proper form, if that is at all possible.

I noted with much interest the exchange between yourself and Senator Prud'homme. This issue is a puzzlement.

Senator Prud'homme: Just for the record, that is the beauty of being civilized. I take the ultimately opposite position to Senator Fraser for one reason. I sat 30 years in the House of Commons and went through so many redistributions. I have in my office a list of all the different districts in which I ran.

Just to make a more exciting finish to the day, I believe that the last people who should have anything to say about redistribution or about electoral acts are those people who are elected, because they have a direct vested interest in how the law will function. I would have always thought that this should be reserved for the Senate because senators do not have to face election. It could be a very good debate.

The Chairman: So sayeth Senator Prud'homme who has fought these battles and won them so many times.

Senator Prud'homme: We have in the past delayed changes to the electoral maps which could have taken place earlier because members of the House of Commons were going around saying, "You are touching my district." There is no such thing as "my district." The law on redistribution should be allowed to follow its course.

The Senate, in its wisdom, says the law must follow its course, and the election was called, if I remember correctly, according to the new law. You can correct me if I am wrong.

Mr. Kingsley: Changes were not done in time for the 1993 general election. They were done in time for the 1997 general election, but barely.

The Chairman: Thank you very much for appearing before us at this late hour.

Tomorrow, we will meet on three bills. Bill S-27 and Bill S-28 will involve witnesses and clause-by-clause consideration.Then we will resume our study of Bill C-9, to amend the Electoral Act.

The committee adjourned.

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