Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence for May 5, 2004
OTTAWA, Wednesday, May 5, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-3, to amend the Canada Elections Act and the Income Tax Act, met this day at 4:20 p.m. to give consideration to the bill.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: Welcome, senators.
[Translation]
We are going to continue our study of Bill C-3, to amend the Canada Elections Act and the Income Tax Act.
[English]
To help us in our consideration of Bill C-3, we have two panels, the first of which is comprised of professors of political science. We will then hear a panel comprised of members of political parties and a representative from the Fraser Institute. Following that, we will go in camera to discuss a draft report of observations on Bill C-20.
I also understand that the Standing Senate Committee on Social Affairs, Science and Technology is meeting in this room after our deliberations for a scheduled video conference with New Zealand. They would like our cooperation in vacating the room, if at all possible, before seven.
In that regard, I would ask the panellists, if they each wish to make representations — it is not necessary — to please keep it brief. I would ask senators to please get to your questions quickly, with as brief a preamble as possible.
Welcome today, Ms. Young, professor from the University of Calgary; Mr. Massicotte, associate professor, University of Montreal; Mr. Wiseman, associate professor, University of Toronto; and Mr. Smith, professor from the University of Saskatchewan.
Mr. Nelson Wiseman, Associate Professor of Political Science, Faculty of Arts and Sciences, University of Toronto, As an individual: Honourable senators, I was asked to speak for five minutes and then possibly for a briefer time. Do not hesitate to stop me at any time. Being an academic, I can tend to be long-winded.
I thank you for inviting me and for thinking that my views could contribute to your deliberations. I also thank the committee staff for forwarding to me some of the background materials on Monday, which I have now digested and ruminated on.
It seems to be a paradox that governments from around the world have looked to Canada and its electoral system as a model, and to the Canadian Chief Electoral Officer for direction in constructing and operating their own electoral systems, while the Canadian courts have simultaneously assaulted and undermined the rules of our electoral system. Is there an act of Parliament that has sustained more challenges and disassembling than the Elections Act? At the same time, we might ask, are the rules of the electoral system a concern to common Canadians? Is there a single poll indicating that even one per cent of Canadians think revising the electoral system is a priority for public policy-makers such as yourselves?
It seems that this committee needs to consider different areas in its deliberations with respect to Bill C-3. The first is what effect will the proposed changes have on the political system. In this respect, we may discuss the potential proliferation of registered parties, the issuance of tax-deductible receipts, public funding and so on.
A second area is the bill's threshold of 1 candidate and 250 members as constituting a political party for purposes of law. A third is the bill's definition of a ``party,'' which I will not repeat. Honourable senators are familiar with that. Lastly, what effect will there be if there is a vacuum created by the bill dying before the Supreme Court's deadline for revisions of the end of next month?
Whatever we may think of the Supreme Court's ruling in the Figueroa case, and I was flabbergasted by it although not completely surprised, given the court's record on electoral law, these issues will have to be addressed by public policy-makers like yourselves and public administrators in the office of Elections Canada.
As an academic, let me begin by hovering above these concerns and touching on the Supreme Court's thrust in terminology; the rationale for its decisions.
Two platitudes and imprecise phrases on which it constructs its judgment are: effective representation and meaningful participation. These are highly contested and elastic terms that, like rubber bands, can be stretched in different directions. The court, in my respectful opinion, is poorly trained and equipped to spell out what these terms should mean in theory or in practice. This is more properly the work of the political classes rather than the legal class. That is, it is better addressed by politicians, public administrators, political scientists, political philosophers — and the public itself, through the exercise of the franchise.
I find the court's very entertaining of the Charter challenges to our electoral law somewhat problematic. In its landmark 1981 patriation reference case decision, the court cited provincial election acts as part of provincial constitutions. By extension, federal election acts may be considered as part of the Constitution of Canada. Since the court has also ruled that all elements of the Constitution must be considered together in judging conflicts between them, then in my opinion, the Charter ought not to be unquestionably trumping Parliament's electoral acts.
This is reinforced by the Constitution Act of 1867, which provides for elections, and electoral districts within it, suggesting they are part of our Constitutional infrastructure.
The late eminent political scientist, Donald Smiley, also noted that our electoral laws have at least a quasi- constitutional status and ought not to be treated like other, ordinary statutes, but alas, the die has been cast and the court has entered too eagerly onto this terrain at your expense.
I predict continuing challenges, with unpredictable legal upshots, no matter how careful you are in drafting new provisions. There is no Charter-proofing these laws because of the inconsistencies and impreciseness of the rulings we have had and that we will have.
To some, this permits a welcome measure of flexibility. To others, including myself, it means continued uncertainty, perpetual challenges and a further marginalization of parliamentarians. In my opinion, the court has been undermining rather than buttressing the integrity of the electoral system, a system which, since the 1970s, has become more accessible, transparent, open and participatory than at any earlier point in our history.
If honourable senators wish, I can now turn to areas identified earlier as needing your consideration.
The Chairman: First, Mr. Wiseman I will take you up on your invitation to interrupt you. You have now gone over five minutes. If you have an abbreviated version of the second part of your presentation, by all means give it. It is up to you.
Senator Andreychuk: Mr. Chair, may I intrude? This is a very significant bill. As indicated, we raised a number of concerns.
You have indicated that you want to hear all witnesses today and go to clause by clause tomorrow. If we do not hear the full presentations how do we manage to understand the content of the bill? These witnesses were called on very short notice, as you know. If we do not hear them here and have a dialogue, when do we have it and when do we properly assess the bill?
I would hope that there would be latitude to hear them fully.
The Chairman: That is what we are trying to do, Senator Andreychuk. Obviously we have two sets of panels and we want to hear from everybody. That is why I asked the witnesses to try and be as succinct as possible. Even under normal circumstances, we generally ask witnesses to speak for about five minutes and not much more than that. If there is a second part that you would like to present, Mr. Wiseman, go ahead, or if you wish to pass to one of your colleagues, we will hear from Mr. Massicotte. We will indeed give witnesses as much leeway as possible.
Thank you, Senator Andreychuk.
Mr. Louis Massicotte, Associate Professor of Political Science, Faculty of Arts and Sciences, University of Montreal, As an individual: Honourable senators, it is always a pleasure for an academic to be invited to share a few thoughts with the people who are responsible for establishing the rules of the electoral game, which is one of my areas of interest.
[Translation]
I'm going to speak in French as I know that your interpretation services are excellent. It may be pretentious for a professor to explain the definition of a political party to politicians. I'm going to try to shed some useful light on the subject. My first remark is that the thresholds for defining a political party are always somewhat arbitrary. They are stated not on the basis of deep philosophical thinking, but on the basis of the circumstances of the moment and the convictions of those empowered to make the decision. We all know that. Now, to get an idea of the ideal threshold, one may consider what exists elsewhere and wonder whether the wisdom of the democratic nations converges in a specific direction so as not to seem too ``way-out'' in coming round to that view. This comparative empiricism has its limits. It's not to the Supreme Court's liking, but it can shed some helpful light.
I could provide some new information on the subject. I examined the legislation in effect a few years ago respecting the registration of political parties in six democratic countries: the United States, the United Kingdom, Germany, France, Australia and Ireland. You may be surprised to learn this, but nearly all those countries were distinctly less demanding than we are with regard to the registration of new parties. Five of the countries did not require a minimum number of members or a minimum number of candidates. Australia, I believe, required that there be 500 members and at least one candidate within a period of four years. In requiring only a single candidate, the bill is definitely not far from the international average, even though some may consider that requirement too laxist.
Now if we want to impose thresholds, and this is really the focus of my presentation, my message, I wonder whether it's not preferable to stick to purely quantitative criteria, such as a number of candidates or members, because those criteria are much easier to enforce.
Taking more qualitative criteria into consideration makes the decision much more difficult to make and acceptance of that decision will become more uncertain, which risks putting us back before the courts. I wouldn't want to be in the position of the judge or government official who has to determine whether running in elections is one of the fundamental purposes of a political party.
Here it seems to me we are entering a highly subjective area. In the case of a purpose, it will be fairly easy to determine because, if the party has previously put up a candidate, it is assumed that it is interested in the electoral process. But from what point is that essential? In a way, won't this criterion implicitly conflict with the single candidate criterion, which the bill moreover supports? If you tell a candidate, a political party, that it's enough to put up one candidate, it will put up one candidate. At the same time, you have to see whether the question would arise at some point. There are 308 electoral districts in Canada. You've put up a single candidate. How will you really make us believe that a fundamental purpose of yours is to take part in the electoral process since you're putting up only one candidate, when there are 308 opportunities?
In other words, this criterion could well cancel out the previous numerical criterion that you've stated. The Court, and indirectly the Commissioner, is being asked to explore the public statements of a party or its candidates, a statement in support of another political party or a candidate of another political party. That's paragraph 521.1(4)(c). It is also required that it be ensured that the party is not under the direct or indirect control of another entity or that the party is not using its status as a registered party primarily for the purpose of providing financial assistance to another entity. That's paragraph 521.1(4)(e) in that case. That's a lot of value judgments that are hard to make. Are we really sure that those who must make them are equipped to do so?
This leads me to conclude that it would be preferable to delete all references to the fundamental purposes of the parties from the bill and to stick to quantitative criteria. That would foster the emergence of a larger number of parties. We would have more than the 10 or 12 we're used to in this country, which, on a contemporary world scale, would not be dramatic at all. I'll spare you the figures I've accumulated concerning other countries, but the number of registered and recognized parties in most countries is distinctly higher than the number we have here. For the most part, of course, those parties are utterly marginal in an electoral sense, but they are allowed to exist.
[English]
Ms. Lisa Young, Professor of Political Science, Faculty of Social Sciences, University of Calgary, As an individual: Thank you for the invitation to speak. I agree entirely with my colleague, Mr. Massicotte's, analysis of both the proposed legislation as it compares to the registration requirements in other comparable countries and his argument that we need to be quite open, that we cannot make qualitative judgments about what is or what is not a political party.
I will not belabour that. I wish to talk further about what this likely means. The reality here is that the Supreme Court has, like it or not, dictated a very low threshold for becoming a registered political party. They have done so, ironically, at a time when Canada has become one of the political systems whose political parties are the most extensively publicly funded of any in the world. There are some interesting consequences that may follow from that. I wish to explore that somewhat, on the understanding that Parliament will revisit some of these questions in the next two years because there is a sunset clause that comes with this proposed legislation.
We first need to think about what the likely consequences are politically. Will we see a huge increase in the number of registered political parties? My best guess — it is an informed guess, but only a guess — is that we will see an increase, although not necessarily a huge one. There are clear incentives for interest groups or other organizations that are or are not politically engaged to register as political parties. Most notable among them is access to the political contribution tax credit, which will presumably help them with their fundraising activities, and second, access to free broadcast time during a federal election.
That said, this does not mean that every interest group in Canada will necessarily register itself as a political party. There are also disincentives to registration that we need to keep in mind before we become too alarmed about this proposed legislation. First, there will be clear costs of compliance with it. There is a $1,000 registration to run even one candidate. Registration as a political party requires filing of annual audited returns. It is not cost-free, in other words, to register as a political party. I do not think that every little interest group in the country will necessarily leap into the fray and do so.
Second, even though the political contribution tax credit will conceivably help interest groups in raising funds, their contributors will lose their privacy. If they make contributions over the threshold for disclosure, their names will be disclosed in the annual report of that political party.
Third, any political organization that registers itself as a political party will no longer be able to accept contributions from trade unions or corporations. For some interest groups or organizations, that might make this a proposition with very little merit.
Finally, we must keep in mind that interest groups that rely on contributions from individuals are very careful to maintain their image in order to maintain their contributor loyalty. If they appear to be abusing the public purse by registering illegitimately for the tax credit, they may pay a price in terms of contributions. I do not think we will see a huge influx of interest groups, but we will certainly see some. Even when we had a very high limit of 50 candidates, we saw organizations such as the Natural Law Party or the Marijuana Party that were single interest groups or seemed to be apolitical groups, forming as political parties. We will see some of this.
Should we be concerned? There are two things that we need to be concerned about. First, the impact that this will have on free broadcast time. The proposed legislation, as I read it, currently obliges all networks to give two minutes to every registered political party during an election campaign. If we see 10, 20 or 100 new parties all taking them up on this, the implications for broadcasters, I think, are quite significant and they are likely to lobby very hard to not have to provide this time. It would be a great pity if we no longer had free public broadcasting available to our registered political parties. This is something we will have to consider, namely, does every group that registers as a party and runs one candidate necessarily qualify for free broadcasting time?
The second and most profound question is the cost to the public purse of offering the political contribution tax credit to all registered political parties. There is probably no way around it if we want to maintain the tax credit. It is a regulatory innovation that we should certainly keep. It has all kinds of merit. However, this will create a pressure on it.
One of the things that Parliament will need to look at when it reconsiders the proposed legislation in the next couple of years is whether there should be restrictions on how political parties can spend monies that were raised through the political contribution tax credit. In particular, whether they can make transfers to organizations other than political parties. I point here to the now deregistered Natural Law Party of Canada, which, on a regular basis, has made transfers to the tune of $20,000 a year to an organization referred to in its financial statements as the organization that sponsors NL. Presumably, that is a religious or quasi-religious organization.
It seems there is little we can do about what the Supreme Court has dictated on the registration of parties, but there are all kinds of implications for the public purse and the broadcasting requirement that Parliament will have to examine in the coming years.
Mr. David Smith, Professor of Political Studies, College of Arts and Sciences, University of Saskatchewan, As an individual: I will not talk about the details of the proposed legislation; people have mentioned that already and I know you are familiar with it. I do want to talk about what I see, in a more general sense, as the effect of this proposed legislation and the Supreme Court judgment on the party system.
You cannot rush to judgment, but I think that the Supreme Court decision and the government's response will have a significant effect in both the notional and conceptual sense on how Canadian political parties work. The practical impact will have to wait. You will have to see it in the context of a widespread discussion about the democratic deficit and the decline of voter turnout and participation. If you look at today's National Post, there is an article entitled, ``Political parties may be over. Local candidates are attracting more support than party platforms and leaders.'' That kind of publicity in journalism continues almost daily.
I see looking at it in two respects. In one way, it seems that the decision and the proposed legislation deconstruct our understanding of political parties, the traditional way that we have looked at them and the way that every political science book looks at them, namely, that you can have a party of one versus a party of thousands. That is counter to all of our learning. Also, to look at political parties now whose purpose is to express opinion, which is said in the judgment, versus an organization designed to structure the vote, that is, to align partisanship or to mobilize voters, which is the traditional way that all books talk about it. These are not set up as alternatives but really as equals. This is a very important point.
Mr. Saada, the Leader of the Government in the House of Commons, has said that an increase in the number of parties will widen the spectrum of opinion available to Canadians and re-engage them — these are his words — in the political process.
That may or may not be the case, but certainly this is one argument, and it is underlined by Mr. Justice Iacobucci's majority decision. He said all political parties are capable of introducing unique interests and concerns into political discourse. I believe the Supreme Court decision eradicates the old distinction between serious and frivolous political parties that runs through much of the literature. It makes pluralism a fundamental factor in Canadian electoral democracy.
That is deconstructing. On the other hand, it also constructs. For the first time in Canadian law, you have a definition of what a political party is. Historically in this country, as in Great Britain, there has been limited state interference in the internal affairs of political parties. Except for the change in the Criminal Code in 1919, section 98, the laws of Canada have not prescribed the authorization, prohibition or the specific method of formulation of a political party. This marks a significant change. In one way, you could sum it by saying that it reconstitutes the electoral process.
The Supreme Court decision is significant. Justice Iacobucci says that participation in the electoral process is intrinsically valuable in an independent democracy for the outcome of the election. Why? Because of the diversity of opinion. This business of the diversity of opinion is extremely important. We have in the proposed legislation and in the judgment an attempt at a reconciliation of Canada's tradition of national, unifying, cohesive parties on the one hand — the Liberals and Conservatives, historically — and newfound protection of minority rights within electoral politics, which I think is absolutely new, as opposed to in the Charter. You have an attempt to reconcile the Charter to electoral politics. This will not go away, whether people think it is unfortunate or not. This is absolutely fundamental to the future of politics in this country.
National parties are interpreted historically as essentially unifying this country as a territorial entity. In this judgment, we see an argument for small parties as essential to the vigour of Canadian electoral democracy and electoral democratic society. This was foreshadowed in the Quebec secession reference, where there was talk about principles, the rule of law, democracy, federalism and the protection of minorities. Now we have the protection of minorities through the electoral system. These are complementary views; they are not hostile. Large national parties are unifiers; small parties or special interest parties express or ventilate voters' particular opinions.
In one respect, then, I would conclude that the Supreme Court decision and Bill C-3 echo, in a sense, the achievement of 1867. Then it was territorial unity and the particularism of the territories in this country; now it is societal.
All Western countries are faced with declining voter turnout. The Supreme Court decision and the proposed legislation constitute a response that may help retain the integrity of the electoral system, which is the foundation of Canadian democracy.
Senator Andreychuk: I appreciate the varying points of view. They are all necessary. Some are complementary; some are not. Mr. Smith said that we would know once we start to apply this what the real effect is. We are all guessing at it now.
One part concerns me, and perhaps Mr. Massicotte or Ms. Young could respond. We are defining a political party in very broad terms, and the one that I am concerned about is that one of the fundamental purposes of a party is to participate in public affairs. I am not quite sure what those terms mean.
We are placing it in the hands of Elections Canada and the Chief Electoral Officer to determine whether that test is met. When Mr. Kingsley appeared here, at first he said that he was ready. If the mandate were given, obviously as a professional bureaucrat, he would carry it out to the best of his professional ability. When he was asked what guidelines he would use, what would be the due process model for someone who was rejected, or someone who wanted to appeal a decision as to whether a group should or should not be recognized, since the entire process is not in the bill, Mr. Kingsley said, ``Well, if you are going to ask me to do all that, I will have to think about how I do it,'' and he backed off a definitive answer.
Is our concern about that subject legitimate? We are saying that somebody — and that is Mr. Kingsley — will have to determine that, but we have not really focused on how he will do it, when he will do it and the due process that will go into it. Are we then politicizing the very officer whom we have spent so many years trying to keep neutral?
I know from my own experience in going to other countries that they have used us as a model, first in the appointment of the Chief Electoral Officer and ensuring that he does not represent just the ruling party's point of view, but also in ensuring that the actions of the electoral commission and the Chief Electoral Officer are not politicized, are beyond reproach and maintain neutrality. If we are to embed Mr. Kingsley in making all these value judgments, are we not drawing him into political value judgments?
Mr. Massicotte: I will venture a few thoughts on this subject. I tend to share this concern. The Chief Electoral Officer has been with provided good opportunity to make his own case on this, and I do not pretend to argue on his behalf. Certainly, knowing the incumbent Chief Electoral Officer, and having known his predecessor, Jean-Marc Hamel, I would say that one of the reasons we have been able to build that institution and maintain one single official in charge of the electoral process — this is not the most common solution in the democratic world, but it has been in force since 1920 and has been a wonderful success, in my view — is that the Chief Electoral Officer was not too involved in making very difficult decisions involving value judgments. The occupational pattern of Chief Electoral Officers has not been one associated with politics. It has always been professional administrators. The first incumbent appointed in 1920 was a lawyer, but all of the others were professional administrators.
When you look at some of the criteria that they are invited by the proposed legislation to take into account, you read things like, and I again draw your attention to this, asking them to determine whether a party is under the control, direct or indirect, of another entity, or the party is using its status as a registered party primarily for the purpose of providing financial assistance to other entities. That leads you into very difficult, dangerous territory — into a minefield.
I am absolutely confident that the Chief Electoral Officer can make very good judgments on these issues, but will they be accepted as such by the people to whom they will be applied? That is certainly a cause for concern to me.
Ms. Young: I will very briefly respond. It seems that the only choice that the Chief Electoral Officer will have in implementing this proposed legislation is to simply say that any organization that meets the formal criteria of running a candidate and having 250 members must qualify. If the Chief Electoral Officer starts making qualitative judgments about what is or is not a legitimate political party, it is almost certain that whoever is holding that office will harm the office as a result. Even if the Chief Electoral Officer were to set out a set of criteria for exactly what we see as being ``engaged in public affairs,'' that is fraught with difficulties. It is almost certain to end up back in court. I do not see any way of doing this other than to go by the quantitative as opposed to the qualitative criteria. We have to learn to live with the consequences of that.
Senator Andreychuk: You are saying that your expectation would be for our electoral officer to maintain neutrality and decline to make those judgments if they were put to him. In other words, if someone said, ``You are going to register a political party and I do not believe that one of their fundamental purposes is to participate in public affairs,'' how will he answer that? He has to make a judgment to answer it.
Ms. Young: I cannot possibly speak for what Mr. Kingsley or any other Chief Electoral Officer would decide under those circumstances. If I were in that position, I would say that running a candidate in an election was evidence of participation in public affairs.
[Translation]
Senator Nolin: Mr. Massicotte, if I understand correctly, you do not object to establishing rules for defining a political party. You only have a problem if we assign the Chief Electoral Officer both the role of enforcing the act and that of accepting players who will fight it out in the political arena. Do I correctly understand your position?
Mr. Massicotte: I might have been clearer. It is not so much the fact that the Chief Electoral Officer is required to make this kind of judgment; it is the very idea of putting this difficult notion of interpreting fundamental purposes into the definition of a political party. Objectives — that is all right; we are in agreement on that. Essential objectives — I think it is hard for government officials and probably even for a court to reach a judgment on that kind of question. I believe I would recommend deleting this entire definition of political party from the bill. We have been registering political parties for more than 30 years without feeling the need to define the expression.
Senator Nolin: In your review of the process applicable in other jurisdictions, have you encountered these kinds of structure or organization, or are we opening the door to subjectivity?
Mr. Massicotte: What has struck me in most legislation is that jurisdictions require registration and they obtain it. There is usually no existing definition. In addition, there is a tendency to say: if we must err, based on the existing provisions, let's err on the side of openness rather than exclusion.
We have chosen another approach. You have seen what the Supreme Court has done with it. But most of the countries are not as frightened of the idea of a lot of political parties as we are.
For example, I looked at some figures that might be of interest to you. In Australia, which does not come across as an aboundingly or ravingly multipartite country, two or three parties are represented in the two houses of its federal parliament; I counted 34 parties in existence, but most of those do not count.
The same is true in Germany. You have four parties represented in parliament; there were 28 participating in the elections. They are authorized; they are told: come on in; you want to exist; that's fine; you have a right to take part in the competition; but, when it comes to entering parliament, I understand that there may be more legitimate concerns. Other thresholds apply, representation and public financing thresholds which are more demanding. It must be understood that what we are talking about are thresholds for existence and legal recognition, thresholds that may be much less demanding than the others we're referring to.
[English]
Senator Mercer: First of all, we appreciate your efforts and your comments. While we have asked you to be brief, we do appreciate the messages you have brought. I have one question.
Ms. Young used the term ``costs of compliance.'' That is one worth focusing on somewhat. If you read the constitutions of the political parties as they exist already in the country, or at least the ones I have read — three constitutions — they all comply fairly easily because they have those statements in there. I suspect if I looked at the others they would read the same way. There are 12 to 14 parties registered so we are not far behind other countries in terms of the numbers.
We have greatly reduced the requirements. There has been some talk about the threshold. The threshold was 100 per riding. We dropped the requirement of 5,000 down to 250. We again made it easier there. That is worth noting.
With respect to the CEO, he has been responsible for making these decisions and registering political parties for years now anyway.
With respect to the cost of compliance, would you not agree that the passage of Bill C-24 last year, with its restrictions and limitations on how you can raise and spend money, is an unseen enforcement tool for what we are trying to do here with Bill C-3? We have already put on limitations elsewhere that would help us here.
Ms. Young: That is one of the ideas that I was trying to get across. If we look at the universe of organizations that might conceivably want to register as political parties in order to benefit from the broadcasting entitlements and the political contribution tax credit, the ban on corporate and union contributions to political parties gets rid of a segment of these. The Canadian Manufacturers' Association or some sort of association that gets its support from industry would not be able to operate as a political party, if, in fact, it had any incentive to do so.
The organizations for whom that does not matter are those that rely on contributions from individuals to support themselves. Bill C-24 is not a barrier for many of the public interest lobby groups that get $100 or $200 from people through direct mail campaigns and so on.
Senator Mercer: I contend that the other threshold is with respect to returning funding to political parties, the 2 per cent of the vote nationally and 5 per cent average throughout the ridings in which you run. That threshold is pretty hard to meet. That is not determined by legislation or the CEOs. It is determined here by the ultimate arbitrator, the people. If they vote for them they will get the money. I would not want us to limit the ability of the voters to make their choice. Would you agree that that is a restriction that helps us?
Ms. Young: Absolutely. If there were no threshold for the annual allocation in Bill C-24, I would be much more concerned about this proposed legislation than I am. The kinds of organizations we are talking about potentially becoming political parties, in all probability will not qualify for the direct public funding under Bill C-24. If they do, then they are legitimate, public political parties because they are getting support from voters. Right? The only concern I have in terms of public funding is the foregone revenue to the federal government through the political contribution tax credit, which is more generous than the tax credit offered to charitable organizations. There is a question about monies raised through the political contribution tax credit being used for other than political purposes. I am not sure how much we can do about that. To some extent it is the cost of democracy.
[Translation]
Senator Rivest: I am impressed by the argument that the criterion for acceptance of registration of a political party should be as objective as possible in order to protect the office of the head of the political process and also to administer that process and so that it is clear to the public. Introducing the notion of assessment into this bill relies on values and good judgment, and that's always extremely difficult to administer.
No one can be opposed to a multiplicity of political parties; that expresses the real nature of the values of all Canadians. My question is directed more particularly at Mr. Massicotte.
In the studies conducted in Ireland, France and Australia, you referred to 25 or 30 parties in Germany and Australia. Is there as direct a link in those countries? The fear of having a plethora of political parties is not based on a diversity or multiplicity of opinions, even if the number may be exorbitant, but rather on the link made with the contribution of public funds. In general, are the other democratic countries you studied as generous with tax credits as in Canada? Is there a link between the number of groups that want to be political parties and the fact that they can obtain tax benefits?
Mr. Massicotte: As regards tax benefits, I am not in a position to answer; I cannot assess that on the data at my disposal. But with regard to direct state subsidies, on the other hand, I have fairly specific data, and what I believe to be your intuition is perfectly substantiated by those data. Most societies are very generous when it comes to registering political parties, but when it comes to financing them out of public funds, however, the state becomes rather more restrictive.
I would like to respond to what was said by Ms. Young, whose remarks were warranted and full of common sense; there really should be more restrictive schedules on that. Some figures might be of interest to you. In Australia, political parties are required to obtain four percent of the vote in order to receive financing. It is not that easy to obtain four percent of the vote in Australia's electoral system. In France, a party must put up 50 candidates or win a seat in parliament. Ireland requires two percent of the vote for a party to be financed by the state. In Great Britain, the number of parties had reached 282 when I checked yesterday around 5:00 p.m. But a party must win two seats in the House of Commons in order to be financed. The percentage of the vote is not taken into consideration. I will not inundate you with specifics. I believe you asked the main point.
Incidentally, I would like to make a connection with Senator Mercer's question regarding the two percent, the threshold for public financing. It is two percent of the Canadian federal vote or five percent in the electoral districts where the party has put up a candidate. I would invite you to consider one point: a party puts up a single candidate and that candidate manages to obtain five percent of the vote; under the old registration system, people felt that they could be quite generous and say that, if the party obtained five percent of the vote in the 50 electoral districts where it was required to put up candidates, that would not be easy to achieve. I do not know whether that question was emphasized, but I would like to bring it to your attention. It came into my mind yesterday, and I thought it might be a discussion point.
Senator Nolin: If I understand correctly, the two percent national figure in the case of a party that has only one candidate only concerns electoral districts where that candidate runs. It is no longer the country, but a single electoral district, where both the five percent and the two percent figures apply.
Mr. Massicotte: You have to consider a party such as the Bloc Québécois, which we know perfectly well will not put up candidates in the 308 electoral districts in the country. Everyone knows why and that's legitimate. But we will look at the percentage of the vote based on the 75 electoral districts. I believe there is a consequence of the bill which may not have been given any thought and which should be considered to a greater degree.
[English]
Senator Joyal: My twofold question is for Professor Smith. If we are logical about your presentation, which talks about opening public debate to multiple parties to better reflect the diversity of views in Canadian society and have a more thriving democracy, according to the Supreme Court of Canada, is not the threshold stated in Bill C-24 taking away with one hand what we have given with the other?
Mr. Smith: Senator, I am not a lawyer. Certainly, after reading it, it would seem that it is so. I would think that Bill C-24 and its provisions are vulnerable to the same reasoning that the Supreme Court gave in respect of this case. I do not see the rationale for making a distinction such that the disparity provided for in Bill C-24 seems to fall the same way as the disparity provided for under the 50-candidate rule.
Senator Joyal: My other question is relevant to the same principle. The Supreme Court stated that the values enshrined in the Charter must be reflected in the electoral system in Canada. Do you have an opinion on the kind of first-past-the-post system of voting that we have in Canada versus a more diversified one, again, to maintain a sense of logic with the principle?
Mr. Smith: It is a legitimate question. I can see how the pressure of this logic would lead one to question the rationale of the first-past-the-post system. I have not yet risen to the challenge of accepting that because I have my own views about the electoral system.
Coming back to my general point, the decision of the Supreme Court is about as fundamental to Canadian democracy as any decision could be. I understand the difficulties that have been raised in respect of how the Chief Electoral Officer might be placed in a difficult position in judging whether a party meets the criteria. That being said, somebody will have to do it. Therefore, the criteria need to be as clear as possible. That decision will have to be made, in my opinion, to conform to the judgment of the court. That is absolutely fundamental. The breadth of Canadian electoral democracy will have moved light years as a result of this.
Senator Smith: Positively?
Mr. Smith: The Chief Electoral Officer is not supposed to make value judgments but from my point of view, yes. Here is logic: This decision tries to bring the electoral system into conformity with the Charter. If one disagrees with the Charter and the pluralism and diversity that it promotes, then I can understand. The electoral system and the electoral law have to conform to the Charter because the Charter is the overwhelming law of the land that Parliament accepts.
Senator Joyal: My last question is for Professor Wiseman. I listened carefully to the first part of your presentation. Perhaps my question will give you the chance to address the other part. According to the Supreme Court in a unanimous decision, the judgment is very lengthy and elaborate. You seem to question the interpretation of the decision in terms of its fundamental principles, but as was said around this table in our previous meeting, section 3 of the Charter is not subject to the notwithstanding clause. I will use another term that might not be legal — we are stuck with it.
Mr. Wiseman: I agree.
Senator Joyal: How can we approach the challenge facing all of us as Canadians, or as members of provincial parties, too — because the principle applies, as my colleague, Senator Rivest, has mentioned, as much to provincial elections, and I do not think they have realized it yet — how can we deal with that in a way that maintains the reliance on and the trust in their political system that Canadians must have at this point?
Mr. Wiseman: The die has been cast. We have to address this issue. This is the challenge.
I do not believe that the Chief Electoral Officer should be probing into the constitutions of parties to see how open they are. One of the ironies of a democratic political system is that it is defined by having competing political parties, but the parties themselves do not have to be democratic; they can be closed or narrow.
Senator Cools: They are very closed. Parties are private clubs.
Mr. Wiseman: That is the history in Canada. They have been essentially voluntary associations and organizations. I think that has served us well.
My main concern — and I have learned a lot from Professors Young and Massicotte — is that we are undermining public confidence. I am not concerned about the registration or the multiplication of parties, or party labels being on the ballots — although I should point out that in Ontario, we do not have party names on the ballot. It is not a problem and also does not seem to be related to voter turnout. I disagree with a lot of the assumptions and conclusions of the court because I do not think it leads to greater credibility or higher participation. Voter turnout has been going down for various reasons.
One of the main reasons, incidentally, is that we do not have door-to-door enumeration and the national register is wholly inadequate. I just do not think it captures the fact that one out of every five households in Toronto moves annually. When I went to vote in Ontario, my name was on the list twice. I voted, but I only show up as 50 per cent turnout — but that is a separate issue.
The question you are raising, senator, is what do we do now? My main concern in terms of credibility of the system — and this is where I am learning — is not the registration of parties. The problem is them getting access to public funds.
We already have some academic studies and numerous news stories that point out that the parties are being largely funded by public monies. They hire workers. Those workers, on the understanding that they will contribute to the party, get a tax receipt. Money is going back and forth between riding associations and the central association, and it has the potential of becoming a boondoggle.
I look at the Natural Law Party — and it was registered — and I question it. Here is a party that has fielded, I think, a broader slate of candidates than one or two of the largest parties; and then, in a subsequent election, it just more or less disappeared — although the association, transcendental meditation and so on continues in the country. I am afraid of the subversion — I think we all are, we have this in common — of the system using public funds. That will further undermine public confidence.
Senator Smith: There are a lot of things I would like to ask, but I will ask only one question, and whoever wants to respond is free to do so.
Has the Supreme Court put us in a straitjacket? Some of us think the criteria for being a political party should have some meaning, whereas it is now 5 per cent of the previous membership requirement — from 5,000 to 250 — there is no membership fee and you only have to field a candidate in one riding. Then maybe we can look at the British situation, where they have 220 or something that you say are technically parties. Do we not worry about it, or is the wine being watered here to the point that certain aspects of how we run elections in this country may border on the dysfunctional? Do we have to try to figure out some way to respond to this, or just sort of hope for the best? Senator Joyal pointed out that in section 3, the notwithstanding solution is not available, so what do we do?
Mr. Wiseman: I read the Chief Electoral Officer's response when you asked him what happens if we do not act by June 27. He said, ``I will not be able to deregister any parties and I will not be able to register any parties.'' I would solicit his opinion. I am not as well versed in either Bill C-24 or this bill. I know the broad outlines.
Aggrieved parties can also go back to the court to seek remedies. The court has created these problems, these issues; they have thrown it into your lap.
Senator Smith: I know.
Mr. Wiseman: You might want to throw it back.
Senator Smith: I want to see if anyone else wants to respond.
Ms. Young: I think that what Parliament has to do — not necessarily when it is looking at this proposed legislation, but when it revisits these questions in the next two years because of the sunset clause — is to consider where the real potential harms are. Would having 200 parties be a harm in the sense that it is too easy to be a member of the club? I am not concerned about that. Will there be a proliferation of parties on the ballot? Well, if they are only running one or two candidates, no, because they are divided over 300 constituencies. Unless they all run in Spadina, it is not too much of a concern.
The concern lies in where public money is involved in the form of the political contribution tax credit. Are public funds being abused? That is the first question that needs to be considered. The second question is what happens to the broadcast requirement? You need to look at where there could be real harm to how the political system functions. That is going to mean not looking at this proposed legislation, but other legislation.
Senator Nolin: Senator Smith used the word ``straitjacket'' about the Supreme Court's decision. Do you believe that? Do you really believe that the Supreme Court has asked us to do all that, or have they simply told us the threshold needs to be lowered, period? Of course, they are writing long pages on the decision, but when you get to the essence, what they really want is to make it simple. However, we are now trying to make it very complicated.
Mr. Smith: I would not use language such as ``straitjacket.'' There is a Charter of Rights that Parliament accepted. The laws of Canada are placed side by side with the Charter to see if they measure up. In the opinion of the Supreme Court of Canada, it did not measure up in this case. From my point of view, you accept that and design a workable law within that framework.
A lot of this is hypothetical. We do not know what will happen. Going back to the earlier question about what is the problem, maybe that is the advantage of a sunset clause. Is there a problem here? I do not see one right now. You can imagine a problem, but I do not see one. I think one has to be careful.
Somebody talked earlier about legitimate parties. I think the Supreme Court decision was trying to get around that. There are no such things as legitimate parties; there are parties that meet these criteria. There are not frivolous and legitimate parties. That is my reading of the decision. The way I see it, that kind of dichotomous view can no longer be sustained under this interpretation.
The Chairman: Thank you very much.
Senator Cools: I have a couple of questions, but I think I can tie them together.
I was listening to Mr. Wiseman with some care, because I too am of the opinion that this judgment is not in the interests of Canadian democracy.
Simultaneously, I am aware that despite all the rhetorical affirmations of diversity and democracy that pepper these judgments, the fact is that voter turnout is consistently declining and public cynicism about Parliament and governments is steadily increasing. It begs the question of who will address all this? I belong to that group of people who believe that the Canadian Charter of Rights and Freedoms was never intended — no matter what Mr. Trudeau told me on these issues — to deconstruct Canada as a country, either in its principles or its system of governance. The Charter was never intended to undermine the power of the representatives or the right of the people to have a sovereign Parliament. I view a lot of these intrusions as haughtiness and arrogance because they are made in the certain knowledge that ministers of justice will take no action. I belong to that group of thinkers. I can support what I am saying very clearly, that judgments should be ousted, and all we had to do was oust one or two and you would see the system fall back into place.
That is just a quick summary statement of my own thoughts. I do not think this has anything to do with diversity or righteousness. What we are doing is a usurpation of power.
Having said all that, the issue that severely disturbs me — and you have read the old federalist papers; those gentlemen had some clear ideas about the relationships between Parliaments and courts, and with the Crown, the executive — is this judgment is now —
The Chairman: I will have to interrupt. I do not know if you were here when we talked earlier about hearing another panel, but I will ask if you could get to your question. I would like to hear the responses of the witnesses.
Senator Cools: I was working on it.
The Chairman: You have been working on it for five minutes. I am encouraging you to speed it up, if you would not mind, please.
Senator Cools: Can I recapture the time you used?
Take that off. I studied mathematics, too.
My understanding of the process is that the absolute boundary line for court orders is intrusion into what I would call the Consolidated Revenue Fund. In my mind, the line has been crossed. This judgment that supposedly the government is implementing with, let us be frank, the acquiescence of Parliament, predates Bill C-24, the electoral financing map. The entire design of the financing of electoral parties has been redrawn by a particular bill. The least that should have happened is that this judgment should have been reconsidered — remember we are the high court of Parliament. We can appeal this judgment in the high court of Parliament. However, the fact is this judgment did not consider or countenance Bill C-24, the act that was passed just a very few months ago, and much is troubling me about this whole thing, but especially that. There can be no pretence here that the courts have not entered into the realm of allocating dollars. They have entered the realm — I should say the closet — of the Consolidated Revenue Fund.
I know that is a little long. Have you thought about it? You talk about voter turnout. One of my neighbours a few days ago said to me, you know —
The Chairman: Senator Cools, I am going to interrupt again. Could you please get to your question? Some of our panellists are nodding and I think they want —
Senator Cools: You do not want me to ask questions, is that it? I do not mind. You can have the floor, Chairman. Let the chairman have the floor.
The Chairman: Thank you, Senator Cools. Would any of the panellists care to respond to the comments made thus far by Senator Cools?
Mr. Wiseman: What has led to increased public cynicism and disillusionment, especially in light of the more liberal financing regime of Bill C-24 — and I do not know the ins and outs of the bill, as you know — is there is $1.75 for each voter, even though the publicity is largely about the restriction on donations of $1,000, and a lot more public funds will go to the parties. If there is a perception that all parties are equal in getting access to these funds, this is just a way of getting to the public trough and those funds are used for other purposes, it will dramatically undermine confidence. Parliament can act by cutting back the liberal provisions for funding, as exists in other countries. Wanting your name on the ballot is one thing. If you want public funds, that is another thing.
We should keep those separate. My understanding of the regime until now is that we tied those together. Perhaps it is time to think about having these different streams, as Mr. Massicotte has been focusing on, that is, the thrust to maintain the integrity of the financing side and Parliament's responsibility for funding; and at the other level, taking into account Mr. Smith's concern about diversity, if a party wants to get together to reflect a minority view, or one region in one province, they ought not to be denied the right to be on the ballot.
The Chairman: Thank you very much.
Ms. Young: I want to clarify the interplay between this proposed legislation and Bill C-24. Because the formula for funding under Bill C-24 is per vote, it means that the only thing that increases the draw on the public purse is if voter turnout increases. If you have 40 parties collecting money under Bill C-24, unless voter turnout increases, the same amount of money is spent. It is just divided up 40 ways instead of 5. Therefore, there are really no implications for the public purse in terms of Bill C-24 unless a proliferation of parties increases voter turnout.
If you are concerned about public funds, look at the political contribution tax credit. That is where it matters. That was only changed marginally in Bill C-24.
The Chairman: Thank you very much, panellists.
I much appreciate you taking the time to share your expertise with us today. You have given us food for thought.
We are prepared to move to our second group of witnesses. I welcome Mr. Gibson, from the Fraser Institute; Ms. Johnston, from the Marxist-Leninist Party of Canada; Mr. Hellyer, from the Canadian Action Party; and Mr. Figueroa, from the Communist Party of Canada, who has figured prominently in this bill.
Mr. Paul Hellyer, Former leader, Canadian Action Party: Honourable senators, I will try to be brief. One point that has not been made, which I would like to make, is that parliamentarians are the authors of their own misfortune when it comes to this bill. The reason for this bill is that the previous law was too restrictive and the barriers were too high. From time immemorial, people with power and influence have wanted to hang on to that, to retain the monopoly. They have done so, which is understandable. The court has said that there are limits. Everybody has rights. Rights are not limited to those who have power and privilege and should be extended to others.
Over the years, the barriers have created difficulty in respect of the number of candidates that had to be fielded. I do not know if any of you have ever tried to field 50 candidates in a general election, but it is extremely difficult. It requires a tremendous amount of organization and money — more than most small parties have because they have not had access to the funds to meet that criterion.
Until recently, only half of the deposit was refunded to candidates who did not reap a certain number of votes. This was another barrier that, fortunately, has now been eliminated.
There was also a barrier in terms of the auditor's cost. Thus, if you only spent a small amount of money, which most independent candidates did, then most of your auditor's fees were not paid. You had to pay them out of your own pocket or have your party raise the money. The cost of filing returns and all of these things are impediments for small parties to grow and have any chance to feel the effect of campaigns.
I take strong exception to Mr. Wiseman's concern about the public funds. In reality, we are talking about equality of rights, not just special rights for people who already have significant ones. Until recently, the only parties that prospered were those that had access to funds from special interest groups — more specifically, from big business and from labour. Anyone else was not in the ballpark in respect of putting on any kind of campaign because the funds were just not available.
With the proposed change in legislation, funds from business and unions have been curbed. With the ruling of the court, there is, for the first time probably in my lifetime, at least the theoretical possibility of a greater range of choice in the political field. I believe one of the reasons for the low voter turnout is that people thought that there was no real choice. There were different parties and you could change the colours of the sweaters but nothing else changed. I have heard this from so many people. It did not matter which party you voted for; nothing significant would ever change.
This is definitely true in the United States, where there is just a shade of difference between the two major parties. It is somewhat greater in Canada but not enough to influence many people in their decision to vote. People vote by rote on the basis of what their family has done over the years. I would have liked to see this matter resolved without going before the court, because a more satisfactory result could have been achieved for all involved; however, that did not happen. The issue went before the court, which has ruled. I hope that the bill will pass.
I would like to see the bill come into force immediately so that it will apply in the next election, whenever that is held. I have confidence that the Chief Electoral Officer will administer it fairly. Parliament will then have time between now and the two-year sunset clause to review some aspects of the bill and to see what experience brings.
Mr. Gordon Gibson, Senior Fellow, Canadian Studies, The Fraser Institute: Honourable senators, thank you for the opportunity to be here. The Fraser Institute is not a political party. I am here with three other political parties. It speaks well of Canadian democracy that two of those are the Marxist-Leninist and the Communist Party — a slight range in ideology.
This court decision is extraordinarily important. I underline the first line of the second paragraph by Judge Iacobucci: ``The right to play a meaningful role in the electoral process is not subject to countervailing collective interests.'' That is a very important statement. It is a very individualistic approach to politics.
Given the legal time-bomb of this decision, if I may describe it thus, this bill is clearly, as admitted by the government, a temporary fix. The best single clause of this bill is the sunset clause.
I would draw to the attention of honourable senators that if the election is called, as expected, before summer, there is no way that this bill can have any impact on party registration for that election because of the 60-day delay imposed by proposed section 370. What the court will think of that I do not know; but it is a fact.
Nevertheless, once the election is over, there will be by-elections as time goes by, and we will see the law of unintended consequences taking effect in noticeable ways. The first by-election will trigger the operation of this bill and so we will see new parties. I predict that there will be a number of them.
One of the NDP representatives in the House suggested it would give rise to oddball candidates, and while it might, so what? Britain has had their character candidates for years and it has not done them any harm. We had a candidate called Mr. Peanut in the Vancouver-Merrill elections years ago — no problem. It might bring back the Rhinoceros Party, and I might say I would value that highly.
De facto, you would have many independent candidates subsidized by the public purse, and my answer to that is why not? Beyond that, you will get some deadly serious interventions by earnest political players. That a ``party'' can be only one candidate will make a difference. Let me give you an example. Suppose this law had been in existence 30 years ago. Gay persons did not like to come out of the closet then. It was very rare. However, you could have found one candidate. You would have had, in effect, an early warning for society of an important change underway. I suspect that this bill will encourage that kind of latent future reform, or whatever you might want to call it.
For example, I would predict that under this bill you would see fairly rapidly the emergence of a British Columbia separatist party. Something like 15 to 20 per cent of British Columbians are separatists.
You might get gender-based parties, anti-abortion parties and anti-gun law parties. There are organizations in all of these areas. Consider how these organizations might find it useful to amplify their voices through the creation, sub rosa, of an unconnected political party. All of a sudden you have an additional voice with a right to a line on the ballot, a place at candidates' debates and so on.
Groups such as the National Citizens Coalition, the Canadian Taxpayers Federation, the CLC and the Assembly of First Nations all might find an associated political group to amplify that voice, as I say, and subsidized by the public purse, to be a useful creation.
Granted, there are barriers through reporting requirements and so on. However, some of these associations, I suggest, would find this useful. You will not be able to get around the need to define what a political party is.
I understand the reluctance of Mr. Kingsley. I read his testimony. I have a personal reluctance. The state should have minimal involvement in private organizations, but political parties are highly important. They effectively organize our governance and have a monopoly on the genuine electable candidates presented at elections.
We feel it is necessary to regulate groups that are given collective authority, such as corporations, trade unions, foundations and charities, with minimal requirements.
We may be getting into that area with political parties, and indeed it may well be that the courts are doing us a favour in forcing us to look at that.
A strong caveat: Whenever governments seek to set standards or regulate in any given area, they tend to do it in a way that favours the party in power. This is just human nature. For that reason, we have ensured that our election acts are strictly legislated. They are not subject to orders in council or cabinet regulations. That is a very important principle for any of the work that is done in defining a political party.
How do you define a political party? Do you wish me to stop, Mr. Chairman?
The Chairman: I would like you to wind up as quickly as you can, Mr. Gibson.
Mr. Gibson: I will. How do you define a political party? Is it one that is potentially a government in waiting? That is too high a threshold. Is it a group that wants to change a policy? An anti-gun policy is a very low threshold but maybe that is all the Supreme Court of Canada would allow. Ideally, it should be a group that wants to exert a multi-faceted influence in Parliament on a variety of issues.
My first conclusion is that there will have to be some urgent study, forced on us by the courts. Beyond that, the question of internal party democracy will need study and perhaps some standard setting. The public is puzzled by some of the internal leadership struggles we have had in our major parties. They are puzzled by some of the curious nomination contests we have had leading up to this election. That is part of the reason for the declining vote. We may have to look at setting standards for the internal procedural operations of political parties. I will have more to say on that if anyone wishes to ask a question.
Mr. Miguel Figueroa, Leader of the Communist Party of Canada: Honourable senators, at the risk of betraying certain organizational and personal biases, let me say that our party and I personally are completely in favour and very respectful of the decision of the Supreme Court of last June.
It is not appropriate here to go into a long prudential discussion about that decision. However, it is necessary to address certain questions that have arisen about the role of the courts and their intrusion into the traditional jurisdiction and privilege of Parliament to establish the laws of the state.
That is a very interesting debate. There is a reason why, on this issue in particular, the courts, including lower courts, felt it necessary to intervene. By the way, not only Justice Malloy in the court of first instance, but also the Ontario Court of Appeal — even though it was a split decision and they found in some respects on behalf of the Attorney General — lowered the threshold for the name on the ballot, as you will recall, and that too was an intrusion into Parliament's prerogative. Why is that? Why, in fact, is section 3 insulated from the notwithstanding clause? It is not by accident. It is because section 3, and electoral law in particular, as Mr. Gibson referred to, is subject to partisan interests of the parties that are in control of Parliament. It is precisely for that reason that it is absolutely vital for the courts to intervene and for Charter challenges to go forward with respect to this. That is what the courts have found, right up to the Supreme Court of Canada. It is not by accident that it was a 9-0 ruling.
I will return to that in a second.
I wish to say a few words about how we got here. Our party was deregistered in 1993 after Bill C-93 was introduced, which increased the amount of non-refundable deposits from $200 to $1,000, together with the 50-candidate rule and a new provision that allowed for the seizure of parties' assets. We were the first party to be deregistered. In 1993, we did not field the 50 candidates that we had previously fielded for many years. Part of the reason was that we needed $50,000 just to get through the doorway, before we printed our first leaflet or did anything else. There were also internal reasons. It is not a secret. The communist movement was in crisis then, the Berlin Wall had come down and so on and so forth. There were all sorts of difficulties. For all that, the fact remains that this legislation that was brought in constituted an incredible increase in obstacles and thresholds to smaller parties or so-called marginal parties.
We suffered a great deal as a result of that deregistration. Everything has to be seen in the context of time and place. It was the early 1990s. We were the Communist Party, and headlines ran across the country saying the party has disappeared. The Communist Party has been banned. At that time, Communist parties in Eastern Europe, in Latvia, Lithuania and other countries, were being banned.
These questions of deregistration and all of this legislation constituted a tremendous violation of the spirit of not only political process in general, but of the Charter of Rights.
I wish to clarify one other thing that came up in the testimony and discussion before this committee and elsewhere, that is, the rumour that the Communist Party agreed that there could be a higher threshold than one or two. That goes back to the year 2000, when the House of Commons and the Senate were discussing Bill C-2, the first piece of legislation.
When the Molloy decision came down, we called on the Liberal government of the day to do the right thing, accept the ruling, and in the interests of democracy, to bring about all of those changes.
They agreed, in fact, to make the deposits completely refundable. They agreed partially to getting rid of the seizure- of-assets component. However, they refused to go along with lowering the threshold for 50 candidates. That they appealed. At that point, we said that we supported the judgment of Molloy, which was a threshold of two candidates, not one.
When Bill C-2 came to the committee — both committees, in fact — a member of the Conservative Party from North Vancouver raised the question, in committee and privately, ``Would you agree to 12?'' At that point, I said personally that we stood by the Molloy decision, but clearly, if it were 12 instead of 50, it would be progress. There was never any offer of a deal. This is all by the way anyway. It is not really relevant in the circumstances, but I wanted to clarify it because it came up in this committee.
Finally, we have indicated, and you have a summary in front of you, our concerns with respect to Bill C-3. We think that the whole question of defining ``party'' is problematic. It has been used in the past as a means of banning parties — especially left-wing, revolutionary parties — in the United States, in Europe, and even our own party, which has gone through quite a long history in Canada, as you know.
On the question of Bill C-24, we announced when we appeared at the House of Commons committee — and it has now been confirmed — that all six of the non-parliamentary parties, that is to say, our party, the Marxist-Leninist Party, the Canadian Action Party, the Marijuana Party, the Green Party of Canada and the Christian Heritage Party, have all agreed to launch a challenge to Bill C-24 and the threshold of 2 per cent. That is a direct contradiction — and Mr. Smith was absolutely right — of the ruling of the Supreme Court that read that any benefit that is extended to some parties and withheld from others is in violation of the Charter. That is very clear. We will be challenging it, and we will be right back here again.
Why is that? Certain vested interests want to keep putting up barriers to the participation of political parties. They want to keep the political process like a private country club.
You can say anything you want about private golf and country clubs that excluded blacks, Jews and so on. We have our moral and political views about that. The fact of the matter is that those are private clubs. This is the democratic process and we will continue to fight for that.
Of course, we agree in principle with the two-year review that is being proposed here. There are many things that need to be reviewed. The whole first-past-the-post system needs to be reviewed. If that review is used to find some other way to erect barriers or obstacles to the participation of parties, we will fight it. The Canadian people, in general, do support more openness and accessibility in the political process. That is the way to overcome, at least partially, the cynicism and so-called apathy in that process.
Ms. Diane Johnston, Secretary, National Office, Marxist-Leninist Party of Canada: Honourable senators, our party is calling on the Senate to not pass Bill C-3. We do not believe, contrary to what is being said, that something catastrophic will happen as of June 28 if Bill C-3 does not go through. If an election is called, then the one- or two- candidate rule, not the 50-candidate rule, will apply to running as a party. Those parties that are presently registered would maintain their registration. Unregistered parties without 50 candidates would not be able to issue tax receipts. All of the regulations in place now would still apply.
Mr. Kingsley, when he appeared before the standing committee, said that should an election be held after June 27, the party registration regime would simply be frozen. We feel that there is no need to rush this.
Amending the Elections Act in a manner that would be consistent with Charter rights is a serious endeavour. A definition of a party has been introduced here, without any discussion on this matter. Already, in your own discussions in the Senate, the necessity of providing a proper definition of ``political party'' consistent with Charter rights is becoming evident. Otherwise, contempt for freedom of association may come back to haunt you.
As some of the members of the Senate have pointed out, this warrants serious consideration. Ensuing changes to the Elections Act as a result of the Supreme Court decision concern all Canadians, and quite widely held hearings are required so that many people would be able to participate. The Senate has vast experience to contribute to this important discussion.
To conclude, amendment after amendment is being made to the Elections Act right now, creating more and more entanglements. This should be done properly, with all of the serious consideration and participation that it warrants.
For all these reasons, we call on you not to pass Bill C-3. Let us not rush into something that will not only fail to sort out the problems, but will further deepen the credibility and legitimacy crisis.
Senator Andreychuk: Thank you for your presentations.
I wish to follow up on two points. Mr. Gibson, you started to tell us that you think that Bill C-3 — and I presume Bill C-24, the financing act that was passed previously — would have an effect on the workings of the traditional parties, and I do not know whether you think it is detrimental or otherwise. What are those consequences and do you see them as positive or negative?
Mr. Gibson: I do not know. I mentioned the law of unintended consequences. The older I get, the more humble I become about trying to predict how various political issues will bounce. To a certain extent, we will just have to wait and see.
One thing is clear, though: Given the fact that Canada has become — I do not know if it is the most generous in the world — very generous in funding the political process from the public purse, I think we have to expect that more and more entities will take advantage of the situation, will use the most imaginative ways to extract funds from the public purse, and therefore, the public, through its representatives in Parliament, will have to pay more attention to how those entities organize their internal affairs.
I wish it were otherwise. I would like government to do less rather than more. If Parliament in its wisdom has suggested that a lot of money will go into the political process, it simply has to be watched.
Senator Andreychuk: I have a follow-up question on that. One concern I have is that we put in a definition of a political party that is more subjective than objective. One of the consequences I foresee is the politicization of our electoral commissioner, Mr. Kingsley, or anyone else who holds that position.
Have you given any thought to that? If it says in the bill that a political party means ``an organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election,'' then that officer will have to do more than determine whether there was an endorsement of one or more of its members. The officer will have to determine whether a fundamental purpose of the organization is to participate in public affairs.
I am not sure what that phrase means. I wonder how our electoral officer will define that.
Mr. Gibson: Mr. Kingsley seemed to have some concern about it in his testimony, both here and in the lower House.
However, it seems to me reasonably straightforward: Are they supporting a candidate for public office? The answer is either yes or no. Is that one of their stated purposes? If the answer is yes, it seems to me that that is about as far as he needs to go at that point.
The issue becomes far more complex when you get into the deregistration aspects of this bill, when the commissioner of elections is called upon to look inside the political parties and say, ``Is this entity really what it ought to be?'' The saving grace, from the point of view of this bill, which, as I say, will have to be reviewed, is he has to convince a judge. We have an extra layer of protection there.
I do not disagree with the point you are making. There is a great worry when you have a subjective judgment in this kind of area, which is why I strongly recommend that the criteria should be laid out clearly and in legislation so that governments of the day cannot interpret them.
Senator Andreychuk: I want to ask Ms. Johnston one question.
We keep hearing about the date of June 27. Have you had any discussions with the government about going back to the court to get an extension just for the purpose of ensuring that there is proper public debate and discussion? It would also be an education for Canadians; they will understand what we are doing here. Have you approached the Minister of Justice or anyone else in the system to say, ``We do not support this bill. There should be public consultation. Why do you not go back to the court to seek an extension because it will not affect this election anyway if it is called before that June date? Why not extend the time and do a fair assessment?''
Ms. Johnston: We were happy to be able to appear here. Only two witnesses were invited by the standing committee. Your suggestion, to be proactive on this, is very much worthy of consideration. We may do that, but no, we have not had discussions with the government on this.
Senator Joyal: I would like first to congratulate Mr. Figueroa on his victory in the Supreme Court. It is a very important decision. The fact that the court is unanimous speaks to me of the importance of the principle, especially with respect to section 3 of the Charter.
When I read the judgment, I am led to believe there are many implications, because they have established a principle that was not present before in the legislation. In fact, to me, it is a principle that, as Professor Smith and other witnesses have been stressing, changes the approach to the definition of the nature of the electoral act and its functioning.
If the system is to be coherent, it has to be true to its principles along all the lines of the various steps we are defining, namely, the capacity of the Chief Electoral Officer, who is an independent commissioner or officer of Parliament who he serves the public interests as much as he serves Parliament.
When we were called to vote on Bill C-24 last summer, two weeks before the decision of the Supreme Court, I personally expressed a reservation about the threshold section of Bill C-24. When I read paragraph 91 of the decision, I still have the same preoccupation, but the court seems to have other elements in mind that it would like to take into account in concluding that the thresholds are not legitimate.
I would like to quote from paragraph 91, where the justice says:
... I express no opinion as to the constitutionality of legislation that restricts access to those benefits.
The benefits are the right to purchase reserved broadcast time, the right to partial reimbursement of election expenses and access to free broadcast time. The justice continued:
It is possible that it would be necessary to consider factors that have not been addressed in this appeal in order to determine the constitutionality of restricting access to those benefits.
You tell us today that with a group of five other parties, you intend to go to court. I do not want you to plead your case here; we are not a court. We are trying to understand the principles at stake in this proposed legislation because we will have to deal with it in two years' time, if it is passed as is.
In your own experience, what are the other factors that you want to bring to our attention that could lead us to believe that there are some sections of the Canada Elections Act that are questionable in terms of the threshold?
Mr. Figueroa: Do you mean with respect to Bill C-24?
Senator Joyal: Yes, Bill C-24 or the reimbursement of electoral expenses.
Mr. Figueroa: First, when we launched our action, which was a defensive one — we had been deregistered and our assets seized back in 1993 — we sought to ask the court to rule on the constitutional substance of the matter. It is that process that culminated in the Supreme Court.
At that time, we indicated that we were challenging certain provisions: the 50-candidate threshold and the right to issue tax receipts to our supporters; but not the broadcast rights or the question of compensation for electoral expenses, et cetera.
Obviously, Bill C-24 was not on the map at that point in time, or even in June, when the Supreme Court issued its ruling.
However, there is a difference between the Bill C-24 threshold, of the 2 per cent of a Canada-wide vote before there is any kind of distribution of public funds to political parties, and the other thresholds with respect to broadcast time and so on.
By the way, I should say that a number of our parties opposed the very idea of using public funds to finance political parties, but if it is going to happen, then it must be on an equitable basis. The argument that the government put forward in advancing Bill C-24 was that it was modelled on the experience in Quebec; yet there is no threshold in Quebec. Our party, the Parti Communiste du Québec, is registered provincially. They received — I do not know — perhaps a few thousand votes, nothing more, and they get $1,700 every six months. It is peanuts. It is nothing.
When we appeared before the Commons committee on Bill C-24, we had done a study based on the 2000 election, using those figures. That is to say, if Bill C-24 had been in place after the 2000 election and, looking at the distribution of votes, they removed that threshold, the five big parties — now it is four because of the merger of the Alliance and the Tories — would still take 98.8 per cent. The six non-parliamentary parties would have 1.1 per cent between them — not even that — yet the big parties want to keep it all for themselves and cut off the others. In that sense, we think it is quite a different type of threshold from others. This is a threshold that is taking something away because it is based on the per-person vote.
It is the same idea as issuing tax receipts. If you read the argumentation for issuing tax receipts, the recommendations made the point that this would be a way of helping parties to raise money and to function in the political process. However, the main argument for the issuing of tax receipts, et cetera, was to encourage individual Canadians to become active in the political process by giving money.
The question that immediately arose was why is it that if I want to give a donation to Party X but they only ran 47 candidates, I cannot get a tax receipt, even though that is the party whose policies are closest to my views?
If I give it to party Y, which has met that threshold, then I can get a tax benefit. In other words, it discriminated against individual Canadians, not political parties, I would argue. It was discriminatory in terms of the rights of each Canadian and every taxpayer. I pay taxes. There is a system in place to encourage people to participate in the political process through such a refund, but I am told which party I can support, which ones meet that criteria and which do not. It is perhaps a different type of threshold from others, where you could say there is an argument for a quantitative threshold; but not with respect to that, and not, we would argue, with respect to Bill C-24 and the 2 per cent threshold. It is on that basis that we will challenge it, and we are quite confident we will succeed again.
Mr. Hellyer: The benefit of the tax receipts is as was stated. I speak now from knowledge of the Canadian Action Party. It has encouraged participation. The party was founded for the specific reason that we thought that Canada missed a tremendous opportunity in 1995 in not using the Bank of Canada intelligently — as we had between 1939 and 1974 to get us out of the Great Depression, help us finance the war and the post-war infrastructure and lay the foundation for our social security system. We felt the government had a choice and that it made the wrong one.
Consequently, there was a point of view that was not being discussed in the public domain. Therefore, the party was launched for the specific purpose of putting forward an alternative point of view that was not otherwise getting any attention whatsoever. This encouraged a number of people who happened to agree with that point of view to become involved. They did, but they probably would not have participated financially had it not been for the fact that we managed to field enough candidates to obtain registered status.
Even then — and this is what I really wanted the honourable senators to put into perspective — raising as much as $50,000 in a year is tremendously difficult when you are raising it $10, $20, $25, $50, $100 or $200 or $500 at a time. It is a lot of work. We are not talking about getting into the public treasury to any significant extent, but we are talking about the difference between survival and non-survival for a party with a specific and, in my opinion, important point of view.
Ms. Johnston: I wanted to mention other discrimination that we find within the Elections Act, for example, broadcast time. All of the parties not represented in the House have very limited access to broadcast time. All of us together have fought to level the playing field, in particular with regard to an informed vote. It is fine and well to be talking here, with Bill C-3, about how the terrain should be opened up to different ideas and views, but if you do not have the means of channelling them, then it is all for naught. Of course, we can do our own work, but we believe that what is good for one party should be good for all parties, and there are a number of injustices in the bill.
A few years ago, Mr. Kingsley made some recommendations with regard to broadcasting. He wanted to sever paid time and free time. Small parties have no access to paid time because of a lack of funds, and he wanted the free time to be distributed equally amongst all of the parties. If we are really concerned about this credibility crisis we are facing, how electors feel that they are disenfranchised and that they do not have the right to an informed vote, why not look at reforms to bring about some changes to the system?
Mr. Gibson: On the specific and important question of Bill C-24, I think the government might have some real difficulties with that if it goes to court. I remind you of Justice Iacobucci's insistence on the individualistic characteristic of the right to participate meaningfully. If Bill C-24 is to be saved, I would suggest it could be saved only by section 1, the reasonable and free democratic society. The minority judgment indicated that there was merit in measures that he referred to as aggregating the political will — in other words, tending towards the unification of individuals into parties — but that the 50-seat requirement simply went too far in that direction. That specific consideration was considered in this judgment and lost six to three. Indeed, the court could go so far as to say — as I would argue if I were arguing the case against Bill C-24, and I am not sure which side I would come down on — not only that, but ideas of themselves have merit, and therefore small parties ought to get disproportionately more of the public money.
The Chairman: Thank you very much.
Senator Mercer: I want to change subjects and return to the issue of definitions that several people have raised. Everybody seems to be acting as if this is something brand new in Canada. Five provinces, at least, have similar definitions. British Columbia, Saskatchewan, Manitoba, Nova Scotia and Newfoundland all have definitions of political parties in their legislation that, broadly speaking, mirror the definition in this bill, so it is not something new. It is true that there are jurisdictions that do not. Have I missed something here? People keep talking about this as if it were something that the crafters of this proposed legislation invented, when in reality it is in existence in other jurisdictions.
Ms. Johnston: I do not think there is anything wrong in having a definition of ``party.'' At the same time, I think it merits serious discussion and consideration, so why rush it? That is basically what our opposition is all about.
Mr. Figueroa: At least from the perspective of our party, the devil is in the details. Do we object in principle to the idea that one of the fundamental purposes of a political party would be to try to affect public policy by fielding candidates? No. We accept that.
However, if you go through all of the clauses, and I am sure the committee has, including references to the criteria that the courts would ultimately take into consideration, it includes, for instance, not only looking at the press releases, the constitutions and programs of political parties, but at one point, it refers to whether or not that political party has indicated support for another political party.
This is quite problematic, because our party — and others — has historically fielded 50 or 80 or 100 candidates over the years, but not in every riding. When our supporters in X riding, where there is no candidate for the Communist Party, asked how they should vote, we have indicated a preference. We said, ``Do not vote for the right-wing parties.'' This will not come as a big shock to you. ``Vote for a party, whether it is the New Democratic Party or CCF, et cetera, that is more to the left.''
If all of a sudden this will become part of the criteria for questioning whether a party is sincere, then it is very problematic. I am not trying to personalize this, but it is a kind of gag law on parties.
If you are not running, do not indicate whom you support. However, it is much more restrictive than that. At a time when we should be moving to make the political process more dynamic, more fluid and flexible, in a way, it is going in the opposite direction.
The whole idea, the whole registration system itself, tends to militate against parties coming together and forming coalitions. If you look around the world, different parties coming together is part of the political dynamic.
Look at the 1988 federal election on free trade and the fact that the majority of Canadians actually spoke out — not the Fraser Institute — against the free trade agreement. Nonetheless, it came about because there was no prospect of or possibility for parties to form a kind of bloc against the free trade agreement. In many respects, this proposed legislation codifies that. It makes it more wooden instead of making the system more flexible.
Senator Kinsella: I have a question about the important issue of the definition of ``party.'' I would like to get the reaction of the witnesses to this consideration. This bill must be capable of being administered. Someone must manage it. Looking at it from that standpoint, the Chief Electoral Officer, the senior manager in this process, will now be asked to assess purposes. If I am not mistaken, the Chief Electoral Officer himself has told us, ``I would rather be dealing with factual, quantitative things such as name, address, numbers.'' A public administrator like Mr. Kingsley — that is, if I have understood his testimony correctly — is saying that he sees great difficulty with being asked to make a qualitative judgment. From a party perspective, what is your reaction to Mr. Kingsley's testimony in this regard?
Mr. Figueroa: I happened to be at the hearing of the Commons committee, one of the few witnesses invited to the lower House committee to discuss Bill C-3. I think Mr. Kingsley's statements were incredibly significant. He was very forthcoming with the committee. He said, ``Do not put me in this position. I do not want to be in this position.'' He went further than that. He and his staff provided that committee with a list of amendments as to how to clean that out of Bill C-3. He said, ``We will come back in two year's time. Will the sky fall in two years? Will the whole system come unravelled in two years? We can give ourselves more time to discuss this whole question. In the meantime, however, strip out this definition. We will manage and it will not be the end of the world.'' He made that point, and he made it again, I noticed, in his testimony on the twenty-ninth to your committee. He said, ``Once the toothpaste is out of the tube, it is hard to put it back.'' We made the same point. Once you start getting into the question of defining parties, then it is more difficult to say, ``We will stop defining parties.'' What is going on here? I think it is a big mistake. Unfortunately, the majority party on the Commons committee felt, ``Well, we have this time pressure. We have to get things in place by June 27 so we will put in this two-year sunset clause and get on with it.'' I think it was very short- sighted. Certainly, if your committee were to come to a different conclusion, I think it would be in the best interests of the country, frankly.
Ms. Johnston: We feel the discretion that will be imposed on the Chief Electoral Officer through Bill C-3 would not be acceptable.
Mr. Gibson: Parliament has decided to give a lot of money to political parties. If you do not define what political parties are, the courts will do it for you. It is more or less like the bill in front of the Senate, the Westbank Band bill, in which the government has explicitly refused to define the meaning of the inherent right of self-government. You can be absolutely certain the courts will define that down the road.
On the question of what is a political party, I do not think you can escape grasping that nettle and figuring it out.
Senator Joyal: The problem we have with the definition of purposes is the looseness of the criteria, which are pervasive but not very well spelled out. We all have ideas about criteria in our minds because we have touched the political process in a personal or professional way at some point. The other aspect that is as important is the process. When the criteria are loose, you need a strict process for arguing about and debating them in front of an officer whose decision may curtail your rights. When we look at the bill, as my colleagues have said, the purposes are not defined. There are no specific criteria and the procedure is loose.
As you know, the principle of fundamental justice is also part of the Charter. When the Chief Electoral Officer is making a decision in that capacity, he is acting as a quasi-tribunal, administrative tribunal. As such, the procedure, the precedents and the common law that apply in such circumstances will apply in that case. I also have that problem, not only in not understanding what are the other aspects that you must take into account in defining a political party, but the process that you will follow to ensure that the decision is fair. As you said, Mr. Gibson, we are not back in the court. Sooner or later we will be back before the court because a ``party'' that feels aggrieved by a decision or is not convinced that it has been heard will go another step in the legal system. Thus, we will over-legalize the system, an aspect on which you yourself, and the Fraser Institute, commented. We are more or less stuck with a system whereby we are adding different layers of uncertainty in order to be more open.
There is a contradiction there of the objectives of what we want to achieve with this bill and what I find to be a grey zone. Would you care to comment, please?
Mr. Gibson: There are some things that come with the territory. The Income Tax Act started out as a very thin document. We tried to make it fairer as the world grew more complex and people found ways to get around it. Whenever money is involved — and this is reasonably big money here — you will find the same thing happening. As long as Parliament wants to give significant amounts of money to political parties, you will have this problem. I think you state the problem well. It will be the work of this committee and its sister committee in the House of Commons over the next year — and I do not think you should leave it longer than that — to worry, with a lot of witnesses, about that.
In the meantime, I think you have reasonable protection, first, because this bill will not affect anything in the coming election unless you change section 370; second, because, as I argued earlier, the registration of a party under this bill is relatively straightforward for the Chief Electoral Officer. Are you running a political candidate and are you interested in politics? It is the deregistration that is far more difficult, when you get into more of these grey areas you have been talking about, and in that the Chief Electoral Officer does not have the authority; he can only recommend to a judge. You have that additional balance and the possibilities of appeal.
That is only a short-term stop-gap, and you as politicians will have to work this out. You will make mistakes and will be fine-tuning this for years. I see that as the inevitable result of deciding to pour a lot of public money into the system.
The Chairman: I wish to thank the panellists very much for sharing their time and expertise on this important matter.
I would ask honourable senators to remain.
Senator Nolin: I wonder if it would be appropriate to ask Justice Canada to come back. First, the disposition of the decision from the Supreme Court is asking for the government to act accordingly. They have been asked by the court to take action. The deadline is June 27. It would be proper for us to understand what their options are. We will remember that Justice Canada had to return to the court and ask for a delay in implementing a decision. That happened a few years ago with a bill we were studying. We should ask them if that is still an option, or maybe they have already prepared such a filing.
Second, we have learned new facts. We now know that there is a collective action contesting Bill C-24. I personally, and maybe others, would like to know what are the consequences of adopting Bill C-3 now and putting C-24 in question. I would like to hear Justice Canada on this subject so they can at least tell us not to worry and why.
Senator Andreychuk: I just want to add to that. What I had not factored in is that they came today saying they will use Bill C-3 as the basis of their court application to fight Bill C-24 and its credibility.
Bill C-3 will not affect this election, but Bill C-24 is already implemented. If we will be faced with the threat of throwing this new system that we are trying to administer currently into chaos, it seems that Senator Nolin's point is well taken. We do not want to go into an election disrupting Bill C-24 on the basis of a bill that will not apply to it. We do have the luxury of ensuring that the two bills have the same philosophy and will either stand or fail or be subject to scrutiny together.
Senator Mercer: To say that not passing this bill will not have an effect is not correct; it will have an effect. It will cause chaos in the sense that the Chief Electoral Officer will be operating in a vacuum. We will have rules in place that the court has already spoken on. I find it problematic that we are sitting here talking about judgments that have not been made, appeals that have not been filed and worked their way through the system. I would suggest, though, that if we are forced into talking about theory, one could suppose that if the court were to rule in Mr. Figueroa's favour a second time, that would expand the amount of money being given, not take it off the table.
I do not see any effect at all with respect to the upcoming campaign. It might have an effect post-campaign if they were to appeal and the court's judgment said that you had to give money based on a zero threshold or if at least one vote is gained. That is certainly something that can be done after the fact.
We are delaying things unnecessarily.
The Chairman: Senator Nolin, I think I may have a solution if the committee is in agreement. The normal practice for our committee is not to go to clause by clause on the same day that we have heard evidence. If the committee will agree that if we call Justice Canada officials back tomorrow, and if a majority of the committee is satisfied with the answers to the points that have been raised, then we will not insist on our normal practice of not going to clause by clause. Then I have no problem with hearing from Justice Canada officials tomorrow.
Senator Nolin: In answer to Senator Mercer, Justice Canada has the option of asking the court to postpone the deadline. Nobody wants chaos. We want to avoid that. We want the question to be heard.
The Chairman: Senator Nolin, would you be in agreement with my proposal?
Senator Nolin: I will not be there tomorrow, so please proceed. Senator Joyal can do it.
Senator Kinsella: We have a question of substance as well as one of process here. I think we should canvass the room on what level of merit there is, in the public interest, in asking the court for an extension, because that would satisfy a whole array of constituencies, including the Chief Electoral Officer, and the desire to have this bill considered thoroughly. I welcome your proposal that we hear from those officials, but they must be at a level to deal with that question, in particular.
Turning then somewhat to the issue of process, this committee meets tomorrow and then the next normal meeting would be Tuesday.
The Chairman: Wednesday.
Senator Kinsella: The Senate will be sitting next week.
Senator Nolin: We have time.
Senator Kinsella: There would be time. Speaking for the opposition, I can tell you there is no desire and no strategy to delay this bill for the sake of it, but there is a serious desire to get this as right as we can.
One of the other options, Mr. Chairman, is that from time to time, committees get permission to sit outside their normal meeting times. The expectation is that the Senate is coming back Monday night at 8 p.m., so we will have a full week next week. There will be time for the work of this committee to be concluded without being overly rushed, as well as time in the chamber for third reading debate.
Senator Joyal: In all fairness to the Department of Justice, we can of course hear their position in relation to the various legal aspects. The way I understood the testimony of the Minister responsible for Democratic Reform and President of the Privy Council, Mr. Saada, he is the one who sponsored the bill. In my humble opinion, if there would potentially be a decision for the government to go back to the court to seek leave, it would involve certainly the minister we heard as the first witness here around the table. I would suggest that he is an essential person to hear from, to give advice and to help the committee with its decision.
If we are to hear, in the first instance, witnesses from the Department of Justice on some aspects of the bill and the potential court decision, in the end, I think the minister responsible for this bill will have to express his opinion. We will have to hear him at that time too, as part of the same process.
The Chairman: There is merit to your suggestion, Senator Nolin. In light of what Senator Joyal is saying, we will do that. However, we will do it with the understanding that if a majority of the committee is satisfied with the responses tomorrow, we will move to clause by clause.
I also wanted to hear from Senator Pearson.
Senator Pearson: I am always rather pragmatic. I look at it and I understand the points of view. This is very interesting. Having the officials back and so on will help with the record when this bill comes back. I have no disagreement with that.
However, pragmatically speaking, the reality is that this bill will die if we dissolve. You will be back to the whole process of getting it through. Those are the questions that we have before us, and I think we need to think in those terms.
Senator Nolin: That is why the delay is important.
Senator Mercer: My understanding is that Justice has never appeared here; it was PCO.
The Chairman: I am pretty sure that is what I said.
Senator Mercer: We need to be clear.
The Chairman: I think we want the ministry officials.
Senator Mercer: If we hear from Justice people, we will have a new group.
The Chairman: We will make every effort to have Minister Saada here as well.
I have one other item, colleagues. The observations have been distributed to your offices. Senator Joyal has made some very good suggestions for a few changes. We will have those changes made overnight and we can discuss it in camera tomorrow.
The committee adjourned.