---

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 9 - Evidence

---

OTTAWA, Wednesday, June 6, 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 at 3:40 p.m. this date to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this committee is now in session to proceed with clause-by-clause consideration of Bill C-9.

Before we do that, I believe Senator Joyal would like to deal with Senator Fraser's concerns about the usage of the English language in Bills S-27 and S-28.

Senator Joyal: I am indebted to Senator Fraser for raising a point about the preamble or the "whereas" clauses of Bill S-27 and Bill S-28 which were adopted by this committee, reported to the chamber for third reading, and adopted by the Senate last Thursday. In relation to the drafting of the last whereas, I informed my colleagues that the draft had been put together under the auspices of the Law Clerk, and in particular, Mr. Raymond Duplessis, our former law clerk. I passed on to him the concern of Senator Fraser, because I thought it was valid.

Just 20 minutes ago, Mr. Duplessis sent to me the information regarding Senator Fraser's questions. I will circulate this document so my colleagues have the response from the authorized person, and so that the answer I gave to the honourable senators last week is confirmed by this information. I will share it with all members of the committee and with you, Madam Chairman.

The Chairman: The page will copy the document and circulate it to all honourable senators.

Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-9, to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act?

Hon. Senators: Agreed.

The Chairman: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: Shall clause 1 carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clause 2 carry?

Hon. Senators: Agreed.

The Chairman: Shall clauses 3 to 27 inclusive carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall the title carry?

Hon. Senators: Agreed.

The Chairman: Is it agreed that this bill be adopted without amendment?

Senator Fraser: Madam Chairman, at what point is it appropriate to discuss whether we wish to add observations?

The Chairman: That would be my next question.

Senator Fraser: In that case, agreed.

The Chairman: Is it agreed that this bill be adopted without amendment?

Hon. Senators:Agreed.

The Chairman: Carried.

Are there observations? Our trusty Library of Parliament researcher, Nancy Holmes, was listening carefully to the questions and answers as we went through. She has prepared some draft observations for us. Unfortunately they have not yet been translated to French. I shall read them into the record in English, so that we will have a French translation on record.

The major impetus for Bill C-9 was the recent ruling of the Ontario Court of Appeal in Figueroa versus Canada (Attorney General) in August, 2000. The court held that the sections of the Canada Elections Act which provide that only registered parties can have the party affiliation of their candidates listed on the ballot violate the right to vote in section 3 of the Canadian Charter of Rights and Freedoms and are not justifiable limits to that right under section 1. The court found that the right to vote contains an informational component, and the listing of party affiliation on the ballot is an important piece of information for voters. While the provisions in the act seek to avoid voters being confused or misled, it did not follow that because a political party nominates 49 or fewer candidates, the listing of the party affiliation on the ballot will mislead or confuse voters. In fact, for smaller parties, it may provide the only information that the voter has about that particular candidate. These provisions were therefore declared invalid, but the declaration was suspended for six months to allow Parliament a reasonable opportunity to amend the legislation.

In response to the judgment of the Court of Appeal, Bill C-9 would allow "political parties" - that is, groupings or entities who nominate at least 12 candidates - to have the affiliation of their candidates shown on the ballot. Clause 12 of the bill further provides that in the case of by-elections, only those parties that had nominated at least 12 candidates in the preceding general election are entitled to have their candidate identified on the ballot. This is not, however, any different from what is currently the case for new registered parties under the Canada Elections Act.

In his appearance before your committee on May 30, 2001, the Chief Electoral Officer of Canada, Mr. Jean-Pierre Kingsley, stated that while his office had no concerns about the technical and administrative amendments proposed in Bill C-9, he felt that the changes regarding identification of political affiliation of candidates on electoral ballots raises some important issues. In particular, Mr. Kingsley felt that a 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 all the requirements of the Canada Elections Act. It, therefore, logically follows 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, again provided the party had met the requisite legislative requirements.

In his appearance before your committee, the leader of the Christian Heritage Party provided a practical example of how, in his view, the current threshold provisions on ballot identification can work to generate misinformation among voters. Due to the de-registration of the party, its candidates could not be identified on the ballot during the last general election. Apparently, one member of the party spoiled her ballot because she believed that the party's candidate was no longer running for the Christian Heritage Party, since he was not identified on the ballot as being endorsed by the party.

The Chief Electoral Officer also used this example before your committee in support of his position, that a single candidate representing a political party at a general election should be permitted to have his or her political affiliation on the ballot. As well, the Chief Electoral Officer referred to the Figueroa decision, where the court pointed out that the Communist Party of Canada, CPC, is a political party within the common understanding of that concept, even though in the general election of 1993, the CPC nominated only seven candidates, and in the general election of 1997, it fielded none at all. The court noted that the CPC has all the attributes of a party: a leader, officers, a membership, a platform, and it chooses and supports candidates for election. Moreover, the CPC is prepared to register and subject itself to the various provisions which regulate the identification of party affiliation on the ballot. In the court's view, denying candidates of the CPC the right to show their party affiliation on the ballot 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. For example, some - and history suggests only a few - will want to cast their ballot in favour of a candidate because he or she is endorsed by the Communist Party of Canada.

In response to questions by a member of your committee concerning the argument that Bill C-9's proposed threshold number of 12 has a certain familiarity and historical resonance with the House of Commons, Mr. Kingsley drew a distinction between those who are elected and those who are trying to get elected. He stated that it was not clear to him why the threshold for the former should be the same for the latter, and he pointed to the fact that the Court of Appeal in Figueroa clearly indicated that it is possible to have different thresholds for different purposes under the act.

While your committee sympathizes with the Chief Electoral Officer's view that the political affiliation amendments in Bill C-9 raise some interesting issues, we are cognizant of the fact that the Court of Appeal suspended its declaration of invalidity for a period of only six months commencing August 16, 2000.

Your committee has therefore passed the bill without amendment; however, it is our expectation that this issue will be given due consideration when Mr. Kingsley submits his report on proposed legislative amendments to the Canada Elections Act, pursuant to section 535 of the act. For its part, the Standing Senate Committee on Legal and Constitutional Affairs will continue to monitor these issues in relation to election law and the electoral process.

Does that meet the concerns and objections of the members of the committee?

Senator Moore: The Chief Electoral Officer's position is based on an individual being a member of a political party, and a political party being a body of people that has a leader, officers, a platform and nominates candidates.

In the case of the Communist Party of Canada, in 1997 it did not field any candidates so it was not a political party. Of the four criteria, I guess all are equally important, but if they did not nominate any candidates, then they were not a party in the traditional sense or according to the court cases.

I am having a tough time being sympathetic to a demand that the group be recognized as a political party worthy of all the benefits, whether it be the ability to recoup expenses or whatever.

The Chairman: This is just identification.

Senator Moore: Whether it is identification or whether it is tax benefits, without candidates how can it say that it is a political party? I do not know that it can.

The Chairman: Of course, if you do not have candidates, then their names are not on the ballots and there is no need to identify party affiliation.

Senator Fraser: I think this summary is very good. However, I will suggest a few little changes.

First, in response to Senator Moore's concern, I was greatly struck by the distinction drawn by the Chief Electoral Officer when he reminded us that the court had differentiated between the right to have your party identified on the ballot and all the other advantages for which political parties may qualify. He noted that it was perfectly appropriate to have various thresholds for these various advantages. He made it very plain that, in his view, this very low threshold was only for purposes of identification on the ballot. That is one of the things that made me find his argument so very interesting and indeed persuasive.

That said, I am sorry but you are stuck with an editor. In the first paragraph, eighth line, "While the provisions in the act seek to avoid voters being confused or misled," I think it will sit better if we have it as voters with an apostrophe after the "s."

The Chairman: There is no possessive there. What do they possess?

Senator Fraser: They possess the attribute of being confused or misled. Otherwise, you can say, "To avoid having voters be confused and misled." If that is clearer to all, let us do it that way.

In the next paragraph, in the middle again, "only those parties which had nominated at least 12 candidates."

In the next paragraph, line 4, "he felt that the changes regarding identification of political affiliation of candidates on electoral ballots raise" - not "raises."

In the last paragraph, "While your committee sympathizes with the Chief Electoral Officer's view...", et cetera, and then you note, "...the Court of Appeal suspended its declaration of invalidity..." I have one slightly more substantive suggestion. In the middle of page 2 is a quote of the court on some candidates wanting to cast their ballot in favour of a candidate because he or she is endorsed by the Communist Party of Canada. My recollection is that the court went on to say that other voters - and history suggests many - will choose to vote against that candidate because he or she is endorsed by the Communist Party of Canada.

I would like to include that portion of the quotation. It was a new thought - that identification could have a positive or a negative impact.

The Chairman: That is accepted.

Senator Joyal: I want to express my appreciation for the substance of this summary. You will remember that, when the minister appeared here as a witness, I raised the issue of the definition of a party. To me, the definition is here. This is it. A party in practical meaning should seek to have people elected, but it may skip an election and still remain a party.

The arguments brought forward in the presentation this afternoon confirm that there is great merit in defining a party by asking: "What is a party" and not by assigning a figure. We all know that, of course, 12 is based on traditions within Parliament at certain times, but again, if we read the Figueroa judgment clearly, as many of us have done, it is not at all clear that the court would be ready to support a figure and that indeed "one" might even be enough. Mr. Kingsley's comments are a clear illustration of that view.

Senator Nolin: We are basically saying that we are introducing amendments and, the next time you come, you had better include them.

Senator Fraser: Or you should come with really good reasons why the changes are not appropriate.

Senator Joyal: The points remain on the table. That is why I would like to support keeping this summary as an appendix or however we intend to deal with it. Essentially, this is what I mentioned when the minister was here. By putting in numbers, we risk again being struck down by the court. I do not say that the court will do that, and I could not sustain that argument in front of you today, but there is no question in my mind, in reading the judgment, that the emphasis was put more on the word "organization" than on the concept of determining a figure. That is my reading of it.

That is what I like about this summary. Sooner or later, we must address the issue. In the context of previous elections, common sense tells us that these groups are parties.

The Chairman: We will be dealing with it sooner rather than later. Another elections act must come before us after the Chief Electoral Officer's report.

Senator Nolin: The court considered the interest of the voters and ensured that the electorate was properly informed about for whom or against whom a vote would be cast.

Senator Joyal: Yes. That is the criteria, more than the practicality of the organization.

The Chairman: I believe we agreed that I will add this summary of observations, as corrected, to my report. Is it agreed then that I report this bill at the next sitting of the Senate?

Hon. Senators: Agreed.

The Chairman: I shall do so. This will be our seventh report. Thank you, honourable senators.

Senator Joyal: I have a question. It has not been made clear how this document will be made public by the Senate. Will it be printed as an appendix?

The Chairman: It will be printed as an appendix or, on third reading, the observations will appear in the body of Hansard.

Senator Joyal: It is very important to observe the principle of the matter. Some of us who were here when the minister and the parties came forward want to be on record as holding these views. The issue can still be raised in court. It is important that we are clear.

The Chairman: I was intending to raise the observations in a brief speech on third reading - basically just using these words. Any member of the committee may also address this in a speech.

Senator Joyal: It is very important for our credibility in the exercise that we lead on this issue. If, one day, a court decision comes back on this, it is better to be clear.

The Chairman: It will be in Hansard twice.

Senator Pearson: As a matter of future business, I want to impress upon committee members the importance of looking ahead to the introduction of Bill C-7, perhaps next week or perhaps in the fall. I know that more than one senator from the other side will want to speak to that bill on second reading.

Senator Nolin: Yes.

Senator Pearson: I think we should go ahead with our consideration of the list of witnesses so that we are prepared to get going in the fall. I would strongly support that. In my memory of dealing with the gun control bill, we even came back a week early in September for a very hectic week of hearings.

Senator Beaudoin: Yes, I remember that.

Senator Pearson: I am not necessarily proposing that, but this bill will require much consideration.

Senator Nolin: They took four years in the House of Commons.

Senator Pearson: Yes. I have scanned the bill but I need to go through it thoroughly to ensure we are doing the best job that we can. We should hear from a number of people who perhaps were not heard at the House of Commons committee, including some young people.

The Chairman: Any committee members who have suggestions on witnesses should inform my office so that they may be considered by the steering committee.

As for having early meetings before the Senate resumes its session in the fall, that will be impossible unless the bill is referred to us.

Senator Pearson: I understand that. I was just making the reference to our previous experience.

Senator Nolin: You are suggesting anticipatory work. That is good.

Senator Pearson: We should be thinking seriously about that.

Senator Beaudoin: Especially for that bill, we need to be prepared.

The Chairman: A legislative summary is available on that bill. That will be distributed to members so that you can do some reading beforehand. The committee is now adjourned.

The committee adjourned.

---