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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 8 - Evidence, May 31, 2001 (10:55 a.m.)

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OTTAWA, Thursday, May 31, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-9, an act to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act, met at 10:55 a.m. this date to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, let us get started. We have a quorum. We will hear our panel of witnesses from the Christian Heritage Party of Canada, the Marxist-Leninist Party of Canada, the Green Party of Canada and the Communist Party of Canada. Welcome to the Senate. Please proceed.

Mr. Miguel Figueroa, Leader, The Communist Party of Canada: Honourable senators, I would like to thank you for providing our party with an opportunity to express our views on Bill C-9.

As you know, Bill C-9 has come forward, for the most part, in response to the August 16, 2000 ruling of the Ontario Court of Appeal in the Figueroa decision. That ruling, in part, upheld an earlier Ontario court decision of Madam Justice Molloy that struck down the 50-candidate threshold with respect to the party identifier on the ballot among other parts of the Canada Election Act then in force.

With respect to the bill, our party wishes to make two main points for your consideration. First, regarding process, permit me to make a few background remarks.

The origins of the current bill - and for that matter, several important changes made from Bill C-2 passed in the last session - stem from a political and legal struggle that the Communist Party initiated about eight years ago. If you recall, during the dying days of the Mulroney government sweeping change to the Canada Elections Act were passed, the effect of which constituted a profoundly undemocratic and draconian attack on the rights of our party and other smaller parties. The worst of these changes included the seizure of party assets of de-registered parties and the 400 per cent increase in candidate's deposits, 50 per cent of which was non-refundable unless the candidate obtained more than 15 per cent of the vote.

These changes were indeed anti-democratic and unconstitutional and intended solely to restrict the participation of smaller parties. That view was shared by ourselves, other smaller parties and countless editorial boards across the country. It was the considered view of many, if not most of the candidates of the opposition parties, including the Liberal Party of Canada, in the 1993 general election. However, the promises received from the incoming government to amend the act were never acted upon.

The legal action that our party took in 1993 led to the Molloy decision that struck down several aspects of the old act, including the seizure of assets, non-refundability of candidates' deposits and the 50-candidate threshold for registration. The Molloy decision wrote that threshold down from 50 candidates to 2 candidates.

It was the latter ruling that was appealed to the Ontario Court of Appeal. The appeal court ruling referred the matter back to Parliament on the grounds that the courts could not, at least in this case, attempt to rewrite legislation.

In general, we concur with this approach. Legislation should be written and adopted by democratically-elected bodies, not appointed ones. No personal slur is intended on the Senate, by the way. However, with respect to the electoral law, an obvious contradiction arises, namely that the parties currently holding power in Parliament are called upon to exercise that power to set the rules by which elections are conducted and which regulate and restrict the participation of all other parties which might, at some point, come to challenge their hegemony. In short, there is an ever-present, built-in danger that those so empowered to set the electoral rules will do so in such a manner that serves their own interests and protects their power.

With respect to this problem, Justice Molloy, in her judgment, quoted from the Vriend decision as follows:

If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.

As we indicated in previous interventions in this committee, there is increasing public cynicism towards the electoral process as a whole, reflected not least in the growing support for proportional representation. The only truly democratic solution is, therefore, for Parliament to open up the current electoral system to a genuinely broad and public review process and subsequent reform.

With respect to Bill C-9 in particular, I have two points. First, the proposed legislation would, in our opinion, set up two different classes of registered parties, one which would meet registration requirements for the party identifier only and a second higher threshold for other benefits of registered status. There is nothing inherently wrong with establishing different thresholds for different benefits of registered status. For instance, our party would agree that broadcast rights should be pegged at a higher threshold than simple registration. We, of course, have sharp criticisms of the way that broadcast allocations are apportioned among the registered parties, but that is a separate matter.

It is our contention, however, that certain basic rights and benefits should be guaranteed to all registered parties at a threshold substantially lower than the 50-candidate rule. These include the party affiliation on the ballot provision which is addressed by Bill C-9, the ability of a candidate to transfer unspent funds from his or her party rather than remitting them to the government, provisions relating to issuance of tax receipts, as well as the right to receive final voters lists. There is no legitimate reason, in our view, why all these basic rights should not be afforded to all political parties which achieve the lower threshold and which fulfil other requirements under the act.

 

We would therefore urge your committee to amend Bill C-9 such that the lower threshold would apply not only to party affiliation on the ballot provisions but also to the issuance of tax receipts, the ability of candidates to transfer unspent funds and the right to receive a final voters list.

 

The second point refers to the actual proposed threshold of 12 candidates. While 12 is certainly substantially lower than 50 as a threshold, our party agrees with the argument made in Malloy's judgment that the issue is not where the line should be drawn in terms of how many candidates a party must field, but rather whether there is a basis for drawing such a line at all. A party is an organization which nominates a slate of candidates so that the minimum of two candidates should be required.

 

We therefore urge the committee to amend Bill C-9 to reduce the candidate threshold from 12 to 2.

 

Finally, we would like to inform the committee that our leave to appeal the Ontario Court of Appeal decision, the decision upon which Bill C-9 is based, has been granted by the Supreme Court of Canada where the constitutional issue involving party registration will be resolved. The Supreme Court has agreed to hear our appeal and the fact that it has agreed to hear that appeal confirms the substantial nature of the constitutional arguments we have made in favour of lowering the overall threshold for party registration. Depending on the court's ruling, further changes to the Elections Act may be required.

 

Ms Anna Di Carlo, Secretary, Marxist-Leninist Party of Canada: We are of the opinion that the changes to the Canada Elections Act in Bill C-9 do not address the fundamental problems inherent in the electoral law, which we think is becoming increasingly anachronistic. Changes that are aimed at trying to make this law coherent will not succeed. The changes have to address the fact that the act does not allow Canadians to select and elect their peers in a meaningful manner. It does not provide a level playing field for political parties. It does not guarantee an informed vote. Individuals and representatives of non-party political collectives are disqualified from participating in the electoral process as a result of the provisions against third party spending. While the media is not considered third party or special interest, in reality, it is seen as such by the people. The credibility and the conception of freedom of the press and an informed vote is seriously undermined when some special interests can actively push their interests while others are prevented from participating in a meaningful way.

 

As was mentioned, Bill C-9 was passed in response to the Ontario Court of Appeal Figueroa ruling. This court case has not come to an end as leave has been granted to appeal at the Supreme Court of Canada level.

 

It has been argued by the courts, as well as by the Liberal government, that the underlying principles of the Canadian Constitution should be given primacy over the rights of Canadians to elect and to be elected. This underlying principle is defined as the political process which gives rise to a "clear and coherent political will" in the form of a party government being elected - a party based on a first-past-the-post majority. Thus, it is being argued that the Charter right to equality, the right to elect and so on, should be subordinated to what will facilitate preserving the existing political institutions rather than by examining what these political rights actually entail in a modern society.

 

We believe that the time has come to abandon the aim of reforming the electoral law from the standpoint of how to preserve and enhance the unrepresentative system of party government which is based on 19th century Liberal conceptions of good government. So long as there is a refusal to engage Canadians in discussing what would constitute good government today, then further entrenching, self-serving notions in repeated reforms to the Electoral Act will not overcome the political crisis we are facing. Far from it, the lack of credibility in the House of Commons and the discrediting of political parties and political institutions and politicians is increasing. The lack of confidence in elections has never been more profound.

 

The Liberal government's response to the Ontario court ruling in the form of Bill C-9, it seems to us, will meet the requirements of courts. However, we think that, by taking a purely legalistic approach to the problem, the essence of the matter is being suppressed and the status quo is preserved. How will the changes introduced in Bill C-9 enable citizens to participate in making the decisions that affect their lives? How is it an enabling mechanism? How will it reverse, for example, the low voter turnout?

 

Aside from the low voter turnout, the demands and aspirations of Canadians for renewal of the political process and the failure of the government to respond to this is seen in the fact that Canadians are increasingly turning to the courts to seek redress. This redress is escaping them because the decisions of courts can be overturned by Parliament and the underlying principles are being used to justify decisions. Unless these underlying principles are addressed, we think that the reforms will only continue to exacerbate the crisis of legitimacy of the electoral system.

 

Current court cases include a Charter challenge related to the method of counting votes, that is, the first-past-the-post system and there is another court challenge to the provisions of the act which relate to broadcasting time to political parties on an unequal basis. The challenges reflect a growing consciousness and concern on the part of Canadians that the political process is failing them and a recognition that the Government of Canada is refusing to respond to the needs of the times to modernize the political process so that Canadians can participate in governance in a meaningful way.

 

Our submission considers recent developments taking place which are making the electoral law more and more incongruous. We think there are very serious incongruities in the law, such as a party that is eligible to have its name on the ballot being defined as a third party when it comes to everything else; the notion that an informed vote will be met by putting the name of a party on a ballot - when more and more Canadians are being extremely frustrated by the lack of any objective information being provided during an election - and the absence of any means to inform Canadians, other than saying that election campaigning by political parties is equal to informing the electorate.

 

We recommend that Bill C-9 be rejected. We think it should be rejected on the basis that it fails to address the critical needs of our time. We have heard Minister Boudria say that while this is fine, the government will look at the matter more extensively in the fall, after Mr. Kingsley makes his report. However, we think that is a feeble argument to justify passing the law. In the situation where there are so many court cases pending, a serious review of the law is required. It should be done in public, it should be done with full participation, and it should lead to Canadians actually being able to vote on this in a referendum.

 

Mr. Ron Gray, Leader, Christian Heritage Party of Canada: Madam Chairman, honourable senators, I must start by telling you that the submission I prepared and translated perished when not one, but two computers in my office died. Therefore, I am reduced to a few short points.

 

One of the submissions that my party made to the parliamentary committee was in relation to clause 2 of Bill C-9, which proposes to amend section 18.1 of the Elections Act. We suggested that it would be a simple matter to insert into the instructions to the Chief Electoral Officer that in addition to studying alternative voting means involving electronic processes that he also be instructed to launch a procedure for examining alternative means of choosing representatives.

 

I commend to the committee a book by Professor Milner, called Making Every Vote Count, in which he examines recent elections in Canada and suggests that some of the disparities and, indeed, some of the political balkanization of the country could well be avoided and a much more national political spectrum brought to the House of Commons by several alternative voting methods that he discusses. It would be appropriate for this bill to instruct the Chief Electoral Officer to begin a formal examination of those other processes. We have suggested that clause 2 be amended by inserting that instruction.

 

I will not review for you the extreme disparities that have taken place in recent elections, but I will touch on two. One was in British Columbia, my native province, where there was an election in which 57 per cent of the vote captured 97 per cent of the seats and resulted in a severe imbalance. In the last provincial election in Quebec, which is my current home province, the party that got the most votes actually ended up in opposition. Clearly, there is a need for a measure of redress.

 

A meeting was held in these very buildings at the end of March to form a new organization called Fair Vote Canada. That organization came up with a question that ideally encapsulated the problem, which was simply to say: Should Canadians not be allowed to choose the best made-in-Canada system for choosing their representatives? That does not advocate any particular form of voting. It simply raises the question of whether it is time to address the issue of how we choose representation in the House of Commons. I leave that with you.

 

I have made other points before this committee in the past. Those are with relation to the broadcast allocations provisions of the act and with regard to the use of taxpayer funds to subsidize those parties that are in the House to the extent that they start their next campaign with their war chests half full of taxpayer dollars. We feel that is a grossly unjust allocation of resources. However, it is symptomatic of a deeper fault that is entrenched in the act, which is that the act considers how the provision of electoral mechanisms will serve the parties when it should consider how the Elections Act will serve the voters.

 

The primary requirement for a functioning democracy is a well-informed electorate that then makes its choices based on the information available. The current act withholds much information from the voters precisely in the provisions that should meet the need of the voters to be well-informed. Those are aspects that we have asked to be altered and redressed.

 

I want to speak to the question of the threshold and give you a practical explanation of how the present threshold provisions work against the interests of the voter. After the last election, in which my party lost its registered party status because we nominated 46 candidates, I began a telephone survey of our party membership to find out from members what the grassroots wants. I talked to one woman, a member of the party in the St. Catharines area, who told me that on the ballot she recognized the name of the person who had been our standard bearer in the 1997 election and his name appeared with no party identification because we had lost registered party status. She said that she thought he had left our party and she would not vote for a turncoat so she spoiled her ballot. I submit to you that this is an example of how the withholding of useful information misled the voter and caused her to vote in a way in which she did not want to vote.

 

The threshold in the Figueroa case, as the courts have said and which is now being tested, should certainly be much lower. Mr. Figueroa is probably right in suggesting that if any pair or larger group of candidates chose to ally themselves under a banner, it would be useful to the voters to be given that information. Therefore, they should be allowed to register themselves as a party.

 

I have spoken to you on these issues before and so I will be happy to answer questions.

 

Mr. Chris Bradshaw, Interim Leader, The Green Party of Canada: Honourable senators, thank you for the invitation to share our views on this important matter.

 

Basically, I want to point out that The Green Party is the sixth largest party in Canada. It is the largest of the non-parliamentary parties. I think many of you noted that we felt a very gratifying response from the electorate in the B.C. provincial elections a week ago. If there had been proportional representation in Canada, our 1 per cent of the vote would have transferred into three seats in the House of Commons. There probably would be no seats in the Senate for some time, but that may change.

 

As a result, this is a feast or famine operation, as you have heard in many different forms from my colleagues. Because we elected no one to the House, we have no presence on the Hill, we have no research staff and we have no access to the free political broadcasts that allow the parties to address the nation, often after 11:30 at night.

 

These are the kinds of things that, if there is a gradient in effect, mean there is a major drop-off at a point where you have no members of Parliament. That is probably a more serious drop-off than the difference with the magic number of 12, which, as you know, has since been enshrined as the threshold for legal party status.

 

The growth in the number of parties in Canada, as in most democracies, is the result of population explosion, the growing powers of national governments, national business interests and NGOs which have shifted the voters' interests in elections from voting for people based primarily on personal knowledge and the character of those candidates to voting for legislative priorities and distinct philosophies of governance. Unfortunately, citizens only have a vote for the person. They do not have a vote for the political philosophy. The entire labelling process that Mr. Gray suggested is an important part of that.

 

This has led to a growth in political parties, functioning as a kind of branding mechanism that communicates to voters that the candidate, whom they probably do not know personally, has a certain minimal level of integrity and that, once elected, will behave in a particularly predictable way to protect the interests consistent with the political philosophy that comes with the party label and, of course, the list of priorities that the party has stated in its platform.

 

Many countries have changed their voting systems to allow for easy formation and reformation of political parties to respond to current realities and to allow voters' party preference to be reflected more faithfully in the makeup of their legislative bodies. Much of what is in our election laws is a clear attempt to deny these historical trends, leaving Canada clutching, insecurely, to the outdated mechanisms of the past.

 

The only large democracies using exclusively the single- member plurality, or the first-path-to-the-post system, are Canada, the U.S. and India. Two of those three countries are holding themselves up as models to the rest of the Americas as the ideal form of democracy. I would suggest that requires questioning.

 

On the matter of the proposed legislation before you, we believe that the threshold should be lower than the 12 that currently is required. We believe that it should be between 2 and 5. We point out that it takes two points to determine a line, three points to determine a plane, and three, in fact, to make a crowd. We think that a party should have slightly more than three. The number 12 seems to be drawn from, as I indicated, the number to qualify for official party status. That number has come under severe questioning in the House.

 

More generally, it would be sufficient for any privileges that come with party status to simply be matched by responsibilities and appropriate oversight from an independent body. Further thresholds might be different for different privileges - a comment already made by Mr. Figueroa - allowing for a more finely-grained ladder that provides, not so much a one-way fire escape allowing you to leave your party status, but to provide a series of challenges to a growing party. That would allow growth and development of a more mature political party that could prepare to eventually rule, or at least be part of the opposition of our parliamentary system.

 

On the matter of voting systems, I would point out that, two weeks ago, our party launched, with the constitutional test case centre at the law school of the University of Toronto, a challenge to the first-past-the-post voting system based on our perceived violation of two sections of the Charter of Rights and Freedoms of our Constitution. The first challenge is that it denies balanced representation for women and members of ethnic minorities and that it unfortunately favours regionally-concentrated parties over more dispersed national parties. These parties tend to provide a less comprehensive critique for a national approach to problem solving and protecting our natural and human resources. Rather, they draw on raided resources of established parties and focus their limited resources on a geographically concentrated cluster of ridings in a small number of media markets. They dwell on negative messages about the transgressions of the government in terms of the major party as well as the institution of national government. They move quickly to avoid the smell of "unelectability" that many smaller parties have, over time, when they do not elect a member.

 

I wrote an op-ed item for The Ottawa Citizen of May 18. I referred to a prior column of John Robson who had made the point that Canadians should not be forced to live with a coalition government when they did not vote for one. Canadians were not asked, because of our voting system, to indicate what they thought the ideal makeup of Parliament should be. It is debatable whether coalition or minority government is bad for any country's interests, since stability is part of the history of countries using all of the different voting systems - and to a certain extent, instability. I would point out that the loss of the Conservative government not quite 10 years ago, from about 180 seats to two seats, was a tremendous loss of experience to our country, quite separate from any personal feelings about the political philosophy of that party.

 

Only mixed-member systems, which Germany and New Zealand now use, provide two distinct votes, one for the person and one for the party philosophy, even if they might slightly diverge. In British Columbia, there is another system. The voters vote for as many candidates as there are seats to be filled. This same effect could be created - the idea of voting for many candidates - by a little known system called "approval voting." Voters could mark, without any requirement for ranking, as many names on the ballot as they found acceptable.

 

I would like to see this as a possible option for replacing our current voting system, if it provided for an additional measure of provincial and national pooling of the votes of those candidates who were not elected to elect additional candidates from party lists.

 

I conclude that we make this appeal to the Senate of Canada, because, like the judiciary to which we have also appealed, you were not elected. You are not blinded by what I might call "incumbentitis," which often makes parties, which have committed to voting for reform, forget, in selective amnesia, that commitment during their time in office. The NDP in British Columbia wishes it had not.

 

You have a unique role in Canada, one which you have rallied to meet in the past and one to which we hope you will rise again.

 

Senator Joyal: I would like to ask a question of Mr. Figueroa, but anyone may add comments.

 

Mr. Figueroa, you quoted part of the judgment of Justice Molloy on the second last page of your brief. Would you comment on this, please? You quoted that "the issue is not where the line should be drawn in terms of how many candidates a party must field$but rather, whether there is a basis for drawing such a line at all$party is an organization which nominates a slate of candidates, so that the minimum of two candidates would be required."

 

One of the possible interpretations of this statement by Justice Molloy, in my opinion, as submitted to the minister yesterday, is that when the judgment mentions where there is a basis for drawing a line, the basis is the organization. Would it not be preferable to define what a party is rather than to simply stick to numbers? I would like to hear from you on this. All of the witnesses have had an opportunity to reflect on this important element. We could understand the definition of a "party," as "a party of at least two people." However, that does not seem to be what the judgment implies. The judgment implies an "organization." Thus, an "organization," as I understand it, means a membership with a representative structure and, of course, a platform.

 

People group together for specific objectives of policies. We try to share the policy objectives and to be open to the public. We try to convince people by "selling" or by having some kind of membership rules and activities. That seems to me what Justice Molloy had in mind when the word "organization" was used in that document.

 

Could I have your comments on this? It does not seem to be as clear as we would think when we read the judgment.

 

Mr. Figueroa: Thank you for that question. There are many levels to the question and I will not wax philosophical with the committee. I should say that our party agrees with some of the remarks made by Ms Di Carlo, of the Marxist-Leninist Party of Canada, with respect to the need to broaden our concept of the democratic process as a whole and the role of individuals, organizations, groups and parties within that context.

 

Certainly our party, since its inception, has had a different concept of the role of a political party from the prevailing mainstream bourgeois concept of the role of a political party. Its primary and virtually sole function is participation in the electoral system.

 

In life itself we have always approached politics as the lifeblood that permeates virtually all relations between peoples. There are economic and social relations, but politics is not something reserved for the ballot box or for elected legislatures. It occurs in our communities, in our workplaces and in our day-to-day relations. The role of political parties - certainly our political party - has been to pay a great deal of attention to extra-parliamentary activity.

 

The problem with the electoral system and the Elections Act itself is that it negates this. The ruling of the Ontario Court of Appeal, with respect to the concept that not only is the primarily function electoral participation but also to express a coherent will, narrows it even further. That decision shows that the role of a political party is to not only function electorally, but function electorally at a sufficiently high level that it could form a block in Parliament. We certainly would question this.

 

With respect to the question of what is a political party in other jurisdictions, provincially and in other countries, different mechanisms are employed. Within the Canada Elections Act itself there are requirements, when a party registers, that it have sufficient indication that it is membership based, that it have a Constitution, that it have an audit, that it have elected officers and so on. As well, it must have a coherent and a commonly-held political platform, such that those individuals who run for office as representatives of a political party put forward a common platform. Otherwise the argument could well be made that they are really independents.

 

Our view is that there is more than sufficient basis, within even the current act, to say that the question of actual number of candidates should not be a further limiting factor on the registered status of a party. The arguments that were made to the court and in the Molloy judgment noted that the line should be drawn. Justice Molloy's argument essentially is that one candidate to a party could possibly be considered to be an independent. However if there is more than one candidate running on the same platform they are a party and the voters have a right to know that. That political organization has a right to a level playing field.

 

We all recognize that there is no real level playing field. It is not just a question of tax receipts. It a whole myriad of the concentration of mass media and what is considered a legitimate or a consequential political organization, as opposed to an inconsequential or quasi-political institution.

 

Let us be honest here. We are not talking about levelling the playing field. Some of these minor reforms will not even approach levelling the playing field in the broader sense of extending democracy, but it would be a start.

 

The courts thus far have upheld many of these aspects. We think that fight will continue not only in the courts but also primarily among Canadian people.

 

I do not know if I have answered entirely. I would add one more quick point. In some jurisdictions provincially, political parties can maintain their registration and run no candidates in a given election. Alberta is a case in point.

 

Ms Di Carlo: This problem is a really complex problem related to an electoral law that does not enable individuals but enables political parties to govern. The electoral law is the first legal definition that we have of political parties. The only requirement is that you field candidates and you have a leader that will sign the nomination papers. It does not say that you must have a political platform. For all intents and purposes, your political platform could be that you want to win a seat in power, a seat in the House of Commons.

 

We think that a serious problem is currently posed by how the complexities of political processes will be resolved, keeping in mind the right of the individual, the right of all the collectives in the society to participate in governing and the right of political parties. How will these things be reconciled?

 

We think that the only way that could be done would be by removing all the privileges that are accorded to political parties. We have examined the system in and out. That is where we think the nitty-gritty of the problem is.

 

A large amount of writing by the Lortie Commission, when it studied the electoral law, dealt with how to strengthen the primary role of political parties within the political process. You probably know the extent to which they went into the problem. For example, between elections political parties disappear. They gave the examples of members of the NDP who were considered amongst the most active of the parliamentary parties and they said that if someone showed up on the doorstep between elections they would not know what to do with him or her.

 

What a political party is in Canada is not a mystery. There are, objectively, different political parties in Canada. The Marxist- Leninist Party is known as a cadre political party.

 

Senator Cools: Political parties are private clubs.

 

Ms Di Carlo: They are special interests also and that is another reason why there is this problem now. How do we define third parties as being special interests with limited rights yet we define political parties as not being special interests when everybody knows they are also.

 

Our special interest is to represent the working class in Canada. We openly say that. Other parties do not openly say who they represent.

 

This entire question will not be resolved if we continue to say that the party system is fine and we should carry on with it. If we were to say that we should fix it so that it would be a little more accommodating of individuals, of third parties or of parties which do not meet the definition that is now enshrined in law. That is as arbitrary as arbitrary can be. I could use any number as a threshold.

 

Mr. Gray: We often make problems for ourselves when we try to draw lines of definition too closely. It is even possible for people to wear the same label and not be coherent in their purposes. We are seeing that in the House of Commons now. The label then simply becomes a label.

 

I would point out that what Justice Molloy said was not that any two people could become a party, but two candidates. Their being candidates implies enough organization to have at least 100 members in each of two ridings and to be able to put together a constitution. To agree to run together implies enough coherence of affiliation and of purpose to become a platform, at least. It is probably best and it is well within our democratic tradition to leave it as free and flexible as possible in terms of defining a party.

 

I would like, again, to urge the committee - and through you, the Senate and the whole Parliament - to redirect the focus from parties to the voters. The purpose of the Elections Act is to give the voters a representative voice in the way their government is structured and a voice in who will represent it them in a representative Parliament.

 

We really must put the focus on how to get the best representation for the voters. How do we achieve the best delivery of useful information to the voters so they can intelligently choose their representatives?

 

Mr. Bradshaw: I sympathize with the premise of your question. If we are to reduce the threshold of one type to two members - or whatever that number is, being that there are other thresholds for other types of so-called privileges - do we not need to replace that with something else in the interests of the public? Quite wisely, the legislation has chosen not to get into and assess the content of the party when considering certain quality matters. They suggested a performance standard, which is all the rage today, with performance objectives and so forth. That was quite wise because political parties are endowed, to a certain extent, with a similar sovereignty of the national government which they are trying to form and we want to avoid the issue of getting into content. It becomes a club of parties that wants to limit the membership in that club. Our party would want to avoid considering the kind of content of what constitutes the constitu tion of the party, other than basic elements.

 

There is an ecology of politics. We now have had, in the last decade, two new elements, a carrot and a stick, which are partly forcing the question upon the members of the committee. One is limitation of third-party activities and the other is the carrot, the advantageous tax benefits derived from giving to a political party, both admirable in their own right. We know the influence of political action committees and we know, as well, the reluctance of Canadians to participate in and properly fund an electoral system, short of total public funding, which I think our party would have sympathy for if that were put on the table. I do not have solutions for that. It is a very broad question because as I said, it is ecology. When you plug one hole you end up creating a new type of behaviour on the part of various parties, which we sometimes get in the voting systems that is referred to as strategic behaviour. People are forced to become something other than what they are comfortable being in order to do what they wanted to do before because there has been an attempt by external forces to limit particular options they had at a previous time.

 

I sympathize with this. It has to be viewed in an ecological sense, which is the type of philosophy that we have of examining how changes here affect changes there and sustainability over time.

 

Mr. Gray: If I may add one remark, using Mr. Bradshaw's remarks as a springboard, what he has described as political ecology has created a problem, which the chief electoral officer himself has referred to. The participation of Canadians in our political process is declining year by year. Part of that derives from the question of being forced into strategic voting to create a bogus majority. Many people, who simply do not feel that situation in any way represents their political voice, are staying home rather than participating in something they feel is failing. That is why we have declining participation, which it is now at a desperately low rate.

 

Senator Mahovlich: What is the perfect system? Are you asking the public to give us the answer? Have the Americans got it right?

 

Mr. Gray: Senator Mahovlich, when I referred to the new organization called Fair Vote Canada, I commended it precisely for not having prescribed a perfect system from the ones that exist in the world, but rather for raising a question that calls on Canadians to design a system to meet Canada's needs, which are geographic, linguistic, cultural and ethnic. All those questions and many others come into play. Therefore, they have said we should design our own best Canadian-made system that reflects our needs and will, above all, ensure that any voters of any persuasion - if there are a number of people who agree with that persuasion - will feel that a voice in Parliament represents them. At least one-third of Canadians do not now feel that is the case and therefore, do not vote.

 

The Chairman: I thank you for coming before us.

 

Mr. Gray, you waved a book about and, for the record, we should have the name of the book and the author in case any members would like to get it.

 

Mr. Gray: The book is entitled Making Every Vote Count: Reassessing Canada's Electoral System. It is edited, from the work of many participants, by Professor Henry Milner, who teaches political science at Vanier College and is an adjunct professor at Laval University. It is published by Broadview.

 

The Chairman: Is it a compendium?

 

Mr. Gray: Yes. It just came out last year and is full of Canadian contemporary information.

 

Mr. Bradshaw: I would commend the book to the committee as well. One of your Senate members sat next to me at the Integrated Relocated Pilot Project, IRPP, conference less than a month ago on this subject matter. I mentioned this book in a favourable way and she immediately found another person who was selling copies. There is already one copy floating around in the Senate.

 

Senator Cools: There is no doubt that political parties are private clubs. There is no doubt that is what they are.

 

Some of them, in point of fact, have no legal existence and some of them have no corporate existence. I do not know whether you intended to do this, but you have opened up very profound, large issues that are beginning to bite us. There has been an enormous reluctance on the part of many to face these issues. I have given a fair amount of thought to these matters over the years because I think that they are important. The day will soon come when we have to face them. It is certainly alarming to consider voting patterns in this country and observe increasing marginalization of huge sections of the population over huge regions. At some point in time maybe we should examine that, but human nature can carry on and never consider some major problems.

 

I am philosophizing a bit because this is how it is. Your remarks are well intentioned.

 

The Chairman: Are they not beyond the bill?

 

Senator Cools: They are not beyond the bill. Some of those concerns speak directly to the bill. Clause 2, amendingsection 18(1) of the act, says that the chief electoral officermay carry out studies on voting, including studies respecting alternative voting means and may devise and test an electronic voting process for future use in a general election.

 

There has been no discussion on this issue at all in Parliament, yet here we are handing out authority for the electoral officer to devise and test. Parliament has not addressed even the question of whether we want electronic voting. It is within the realm of the bill, but what I am trying to say is that these are large issues.

 

The Chairman: It was included this time to add the Senate.

 

Senator Cools: I agree, but the clause remains as flawed as it was before. It has been improved with the addition of the Senate, but the substance of the clause, as opposed to the process, remains as untested. Never mind the Chief Electoral Officer testing electronic processes, Parliament should test whether we want the country to go down that road at all. I have heard some horror stories about electronic voting.

 

The witnesses are right. Many initiatives are taking place with insufficient debate and insufficient canvassing of the conse quences of these decisions.

 

My question is on the definition of a political party and what number should properly constitute a political party. The Court of Appeal decision in the very same case of Figueroa v. The Attorney General stands in marked contrast to the lower court decision of Madam Justice Molloy. I cannot believe for a moment that two candidates could possibly constitute a political party. I do not see how that could even be considered reasonable.

 

In the bill, the number 12 is chosen. What is the rational basis for that choice? I can see none whatsoever. You want it lower because your parties are small. Larger parties will want it larger because they are larger. What is the public interest concerning the choice of a number?

 

Ms Di Carlo: One of the issues is that just because a political party fields two candidates that does not mean the political party is only two members, obviously. I will give the example of the Green Party, which may decide to focus its candidates in ridings that have very serious environmental problems. It will have a big push to illustrate that, if a candidate is elected in certain ridings, that person can grapple with problems by putting them on the agenda. That does not change how large or how small or how serious the party is.

 

Senator Cools: Are you saying that the determination should not be made by the number of candidates being fielded but by the membership base of the party?

 

Ms Di Carlo: All kinds of questions are being posed by this law. That is the point I am trying to make. I will give another example. Let us say the Council of Canadians decides to field candidates. It is not a political party, but it has every political right in the world to decide that it wants to select candidates and field them as Council of Canadians candidates. Yet it is not making any claim to be a political party. Should it not have the right to put its names on the ballot as Council of Canadians candidates?

 

Senator Cools: All this shows that, at some point in time, these august bodies will have to address their minds to the question of what constitutes a political party and those kinds of questions. At one time no group could dream of considering itself a political party without being able to demonstrate a considerable broad base of support. Putting together a political party was a pretty formidable task.

 

That is different from any individual running at any point in time as an independent. In terms of the rights of the citizen, those two issues are getting fused and confused in this particular debate. At some point in time, perhaps in a larger committee study outside the scope of this bill, Parliament must wrap its mind around these profound questions which we have been a little shy to tackle over time.

 

Mr. Figueroa: There are many sides to this question, but I want to deal with the question of numbers and self-interest. Senator Cools, it sounded as if the suggestion was being made that small parties favour lower registration because of self-interest and large parties favour a larger registration threshold for self-interest. The problem here, as you and others have mentioned, is the problem of political parties considering themselves to be private clubs.

 

We do not consider our party to be a private club. One does not join a private club and end up being imprisoned during anti-Communist witch hunts, such as those during the 1930s. Perhaps some parties do qualify as private clubs. The point is that the democratic process should not be a private club.

 

Imagine you are a member of a private golf and country club. We know there are inherent problems in such clubs such as the racism that kept Blacks and Jews out of the golf clubs in the United States for decades, perhaps centuries. An argument could be made, nonetheless, that in a private club members can vote on who gets in and who does not get in because it is private. That is part of the problem of private ownership and private property. The electoral system is not a private country club. Yet we have a reality in which the parties that are already in power are the ones that set the rules for participation. That is problematic.

 

You cannot say, for example, that there should be a higher threshold of credibility and support across the country before you legitimately say you have formed a political party because life is not like that. New forces arise and grow and develop and sometimes they regress.

 

The point is if you set up such a high threshold you are setting up a situation that, by definition, becomes exclusionary and prevents competition from arising. I want to talk about the 50-candidate rule. It is very interesting. If you go back to the debate in the early 1970s when the first Canada Elections Act was brought about, the motion of the ruling party of the day, the Liberal Party, was for 75 candidates. The Tories in opposition put forward 25. Ed Broadbent, the leader of the NDP, actually made an argument for one. He said there was no reason why one was not sufficient to be a registered political party.

 

The fact is that the Tories took a position of 25, the Liberals took 75 and they sawed it off at 50. Is that rational?

 

Why did the Liberal Party put forward the number of 75? It has been well documented that, in fact, the real reason was not the magic of the figure 75 but rather that it would prevent the emergence of a separatist party in Quebec because, at that time, there were less than 75 ridings in the province of Quebec. That was the rationale - very shrewd and pragmatic and certainly not based on democratic principles in general. That was the real politics of it.

 

The question is raised, why 12? I think you are familiar with the argument that you need at least 12 MPs to be a considered a parliamentary party and so on. An opposition party, during Bill C-2 deliberations, put forward a motion to amend the number 50 down to 12. That was supported by all the opposition parties except the Tories and, of course, the ruling Liberals in the Commons. That amendment was defeated but it was supported by the Bloc and the NDP and by the Reform Party, which later became the Canadian Alliance Party. That was the argument for 12.

 

The fundamental question is this: The question of being a registered political party is not a benefit for political parties as much as it is the right of the Canadian people to know and to be able to cast an informed vote.

 

In the British Columbia elections that just took place I saw a list following that election, from Elections BC, which indicated that the registered political parties in B.C. number about 25 or 30 or more.

 

Mr. Bradshaw: It is very high.

 

Mr. Gray: Over 30.

 

Mr. Figueroa: It is more than 30. That has not created great confusion. Somehow there is an argument that, with a lower threshold, there will be a plethora of parties and the Canadian people will not understand. That is a rather condescending attitude toward the Canadian people. The people will be able to figure out political parties. The point is that you should exclude no one.

 

One further important point is the matter of tax receipts. The argument is that there is some sort of benefit. Our parties have different views on this subject. The ability of political parties to issue tax receipts for political donations was upheld by the Lortie commission in its report in 1990, not so much to directly help fund political parties as to encourage the Canadian people, as a whole, to become involved in the political process.

 

We regained our registration in the last election, but was it fair that since 1993 the supporters of the Communist Party could not get a tax receipt when they donated to our party but could receive one if they supported the Liberals? Furthermore, if fewer candidates run, will this suddenly be exploited? Will more people come to the Communist Party because we issue tax receipts? That is ridiculous.

 

The point is that every citizen should have an equal right to access because he or she is participating in the political process by supporting the political party of choice.

 

Senator Cools: I have one last question. You are right about the 1974 initiative that attempted to encourage a broad base of Canadians to make contributions.

 

I have problems with the courts encroaching on what I consider to be Parliament's territory. I have read the two judgments. You say you are upholding the democratic process and you are trying to promote public participation, but the conclusion that Madam Justice Molloy arrived at is as a result of a very undemocratic process, which is reading in and reading out of legislation. If you refer to the Court of Appeal judgment, you can observe that it is a little bit more guarded and exercises a little more restraint.

 

You say you are here to uphold democratic rights. How can you possibly view the process by which this bill has been put before us as even democratic?

 

Mr. Figueroa: As I indicated in our remarks, in principle, we support and believe that only democratic bodies should set the laws in this country. However, there is a problem. If we can find another way of solving it, we should.

 

As a matter of fact, we recommend another way which is to not allow the courts to read in or read out legislation, but to have a genuinely public democratic process, including holding a referendum on rewriting the whole electoral system and opening it up to a full debate. Otherwise, if it just stays within these hallowed halls, there is the fundamental contradiction to which I have already referred, that those who are already here, who already have the power, will use that power. They have historically used it and will no doubt continue to use it to uphold their own interests and not necessarily the interests of the Canadian people as a whole. It has to be opened up. On that point, I believe we all agree.

 

Senator Joyal: I have a question for Mr. Bradshaw and other witnesses can comment.

 

Mr. Bradshaw, in your brief you confirm that you have launched a constitutional test case. I understand that the documents have been filed with the court at this point?

 

Mr. Bradshaw: Yes.

 

Senator Joyal: For our benefit, can you give a brief outline of your reasoning to support your conclusion that the present system is unconstitutional?

 

Mr. Bradshaw: Yes. I just received a copy of those filings yesterday. They constitute a factum with four affidavits, one of them from an expert, Mr. Cairns, who has been apparently respected by all parties, as well as the named litigant, former leader of our party, Joan Russow, who led our party through two federal elections.

 

The grounds for our challenge to the election law is based on the Charter, section 3 and subsection 15(1), I believe. The first deals with fair representation. Our contention - and we realize it must be based on empirical evidence of voting systems - is that the present system, in a de facto way, discriminates against women being elected and therefore, the rights of women across the country. The range of issues that are important to women, because of their traditional role in society and their unique perspective, do not make it to the table very often. These issues include not only the right to run but also to be represented by those who would run to represent your interests.

 

We contend that is primarily based on the performance of the proportional representation systems that use list systems in which the larger major parties tend to have a balanced gender representation in the lists and concern themselves as well with the ethnic makeup of the electorate to be represented in the lists. The voter in most cases cannot change the order in which the list appears, although in some electoral systems that does occur.

 

The first point is fairer representation of Canadian citizens by their elected representatives and the performance of the two systems. The two studies have shown - one of them is cited in the book, Making Every Vote Count - that the representation of women in the first-past-the-post system is about half what it is in the proportional representation system.

 

The other one is actually slightly more substantial. It indicates that the present voting system tends to skew, through strategic behaviour, not only the voter but the parties toward regional representation. The example given here by my colleague from the Marxist-Leninist Party is that the Green Party might consider pooling resources from across the country. It is a very active party. It chose to run in two elections to break through. That is not, by the way, a part of our discussion, but it represents a legitimate strategy, given the voting system. If we spread our resources evenly, we may be able to pat ourselves on the back about the overall popular vote but we will not come down to the bottom line, which is seats. As such, we will still be on the outside, barking on the edge, being the litter on the lawn of Parliament, the pedestrians on the political superhighway.

 

The fact is that voters end up, under first-past-the-post, voting strategically, not perhaps for the party of their first choice but for a party that can give effect to their antagonisms and resentments. In other words, the NDP appealed to our voters in British Columbia that, because of the pre-eminence of the Liberal Party in the polls, a vote for the Green Party was a vote for the Liberals, which was a distasteful thing to do.

 

Our contention is that has worked in some cases, although our percentage of vote did not drop as much as the NDP went up in that particular stage of the election, but it also has the effect of discouraging people from voting. A number of people say, "I really have an impossible situation. I prefer this party, but if I vote that way the scenario suggested by the other party that I do not favour might come to pass, so it is better not to face that moral dilemma by not showing up at the polls.

 

In many ways, what we have in our voting system is a lack of consumer choice. In the private sector we have consumer choice, yet we have a political marketplace that is not, in fact, keeping up with that.

 

Senator Joyal: Which section of the Charter does that refer to?

 

Mr. Bradshaw: I defer to my colleagues. I do not have the paper here and I do not have experience at the national level.

 

Ms Di Carlo: It is section 3 and section 15.

 

Mr. Bradshaw: Many votes are simply not counted. The votes for the losing candidates in many cases exceed those that were cast for the winning candidate.We know, because it is a plurality system, that there is no other way for those voters to have effect.

 

Because of the bias toward regional parties, parties which want to break through tend to concentrate their activities in a small area. It is very difficult for those who vote for the losing candidates in certain ridings to be represented by proxy by the candidates elsewhere because their party platform very often has been one of antagonism towards the very interests of the voters of the other regions of Canada. That works against us having truly national governments. We have national agendas competing on the level of what is best for the country rather than agendas competing over which region of the country or which population group should have pre-eminence over other population groups.

 

The Chairman: Mr. Bradshaw, I want to point out that I take a bit of exception to one of your remarks. You spoke of the male species. Male is a sex, and women and men are the same species.

 

Mr. Bradshaw: The term is gender. I stand corrected and slightly shamed.

 

Senator Fraser: First, I congratulate Mr. Figueroa for having the tenacity to bring these issues in an obligatory fashion before us. It is not easy, especially when you represent a small organization, to fight a major court battle. Whatever the outcome of the final case, clearly the issues that you have raised deserve very serious attention. I congratulate you on that.

 

Second, just in general, I should like to observe that winning seats in Parliament is not the only way for small parties today to have significant political influence and I would cite in particular the case of a party like the Green Party. I was not in politics until I came to the Senate three years ago. I have been learning a lot, as a newcomer. One of the things that fascinates me is the extent to which, within a major traditional brokerage-style party, enormous pressure exists to accommodate a very wide range of voter interests so that every time a small party demonstrates that it is capable of attracting some proportion of public support, the major parties pay attention. They do not pay as much attention as you would like or act as quickly as you would like, but you should not think, just because you got 1 per cent of the vote and no seats, that you are not accomplishing anything. Perhaps saying that is political treason, but I actually believe it.

 

Senator Beaudoin: Is it your contention that, because of section 3 or subsection 15(1) of the Charter, our system of elections is unconstitutional?

 

Mr. Bradshaw: Our contention is that we are asking the court to rule that the system does fail on those two grounds, especially considering that there are alternatives, without specifying or asking the court to specify them or even have the court rule what the alternatives should be. We were very careful. I know there is media attention that we, in fact, are asking the court to enter the area of legislation. Of course, the act of ruling legislation to be unconstitutional is itself a party to that. We feel it is quite justified, given the blind spot we feel the incumbents have on this particular issue.

 

Senator Beaudoin: I am interested in that because our system is based on the British system and, to a certain extent, on the American system. We have very few cases in Canada on the right to vote and we have very few cases on equality. As a matter of fact, I remember one case - in Saskatchewan. In the United States, of course, it is one person, one vote and an argument has been made that the proportional system is perhaps more in accordance with section 15 than the system that we have inherited from Great Britain. Is it your intention to raise that question in court?

 

Mr. Bradshaw: Yes. I am not sure quite what the nature of the question is. We are citing that particular section. It is not a matter of one person, one vote. We are saying that every vote is counted. We are saying that the filter that is there, through which that vote comes to have effect on the outcome of Parliament, is what is questionable. The effect, not the direct effect, but the indirect effect is that each voter does not have a relatively equal impact on the outcome of the election, especially considering that there are alternatives.

 

It does not say that the law forbids certain voters from voting or that it takes their votes and puts them in the garbage pail while favouring others. It does not contend that. It contends that the effect is that, in certain ways, the lady of justice who wears a blindfold, by being fair and even-handed, would be acting in a prejudicial manner because it is up to the government to compensate for certain inequalities that already exist in society as a whole.

 

Senator Beaudoin: There is a distinction at the core of our system. In the United States the system is one person, one vote and the Americans are very tough on this. In Canada, we have one or two cases on this and we accept a certain disparity from one circumscription to another. We had a commission on this. We studied that quite thoroughly. Some people say that the proportional system is more in accordance with subsection 15(1) of the Charter than the system we have inherited because it counts each vote. Each vote counts.

 

I am not aware of any ruling by the Supreme Court on this. I am astonished that it has never been raised in court. I hear you and I say that if you are convinced that such is the case, or if you are convinced that proportional representation is a better system than the one that we have, why not raise that question in court?

 

Mr. Bradshaw: That is essentially what we are doing.

 

I can make one quick comment about the Saskatchewan case. There was a ruling in Saskatchewan that came to the Supreme Court, which was a challenge to one person, one vote on the grounds that rural ridings had a lower population. The court ruled that it was permissible, even though it persisted over some time.

 

We would contend, in our particular brief to the court, that is a far smaller variation - 2:1 - than what occurs in the outcome of the allocation of seats in Parliament, the classic case being the 1993 election with the PCs having something like 20 per cent of the vote and two seats.

 

Senator Beaudoin: I have read the Saskatchewan reference. Madam Justice McLachlin, now the Chief Justice, made the judgment. Some of her colleagues agreed with her, but they never touched on that question. On the country, I think they came to the conclusion that the system that we have in Canada is not at all offensive to section 15.

 

Some people have made the argument that proportional representation is more in accordance with equality before the law than the system we have. I would just say that it might be a good thing, one day, to raise that question in a case before the courts. That is all I will say.

 

Mr. Bradshaw: One other point about section 3 is that rural versus urban is not a prohibited grounds of discrimination, whereas we are talking about other factors that are one of those.

 

The Chairman: Thank you very much for appearing before us.

 

The committee adjourned.

 

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