Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence, February 8, 2007
OTTAWA, Thursday, February 8, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, to amend the Canada Elections Act, met this day at 10:50 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Good morning, I would like to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. The committee is continuing its study of Bill C-16, to amend the Canada Elections Act.
This is our fourth meeting on this bill, whose purpose is straightforward. It amends the Canada Elections Act to bring in fixed election dates at the federal level in Canada. It provides that, subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following polling day for the last general election, with the first general election after the bill comes into force being held on Monday, October 19, 2009.
Honourable senators, our next witness hardly needs an introduction to this committee. Mr. Peter Hogg is a leading constitutional expert in Canada. He is presently Scholar in Residence at Blake, Cassels & Graydon Barristers and Solicitors. From 1998 to 2003, he was the Dean at Osgoode Hall Law School at York University, where he was a professor since 1970. He is well known for his publication entitled Constitutional Law of Canada. Mr. Hogg is cited by the Supreme Court of Canada more than twice as much as any other author.
Peter Hogg, Scholar in Residence, Blake, Cassels & Graydon LLP, as an individual: I am pleased to be here. Let me be very brief. You have a written submission from me, which I sent to the clerk yesterday and which I gather has been translated into both languages. In the English version, I am starting on page 2, under the heading "Power to enact Bill C-16.''
The Canada Elections Act is enacted under the federal Parliament's power over peace, order and good government, which, as you all know, is the power in the opening words of section 91 of the Constitution Act, 1867.
I am addressing myself to, first of all, the power under which Parliament has enacted the Canada Elections Act. As I will submit to you, I believe the same power is available to enact Bill C-16 as well — and that is the peace, order and good government power of the Parliament of Canada in the opening words of section 91 of the Constitution Act.
There is also a power in section 44 of the Constitution Act, 1982. Section 44 of the act permits Parliament to make laws amending the Constitution of Canada in relation to the executive Government of Canada or the Senate and House of Commons.
My view is that provision is not relevant here because it applies only to laws "amending the Constitution of Canada.'' Obviously, most of the Canada Elections Act does not amend the Constitution of Canada. That is why I say it is an act that is under the peace, order and good government power.
I will argue — and I know this is a point of some dispute — that Bill C-16 also does not amend the Constitution of Canada. However, if it does amend the Constitution of Canada, section 44 would be available to sustain it.
Let me turn now to section 50 of the Constitution Act, 1867. I know all of you are probably more familiar with these provisions than I am, but let me just read section 50 to remind you. Section 50 says:
Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.
As members of the committee know, there is also a provision in the Charter of Rights and Freedoms, section 4(1) of the Constitution Act, 1982, which is very similar. Section 4(1) says:
No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.
Is Bill C-16 inconsistent in some fashion with either section 50 or section 4(1) of the Constitution Act? My answer is, no, it is not inconsistent with either of those provisions.
Those provisions are addressed to the mischief of overly long Houses of Commons. They are designed to guarantee that the government submits itself to an election within a reasonable period in office. The purpose of the provisions is not to prevent shorter Houses of Commons. Five years is simply a maximum duration, not a fixed duration.
I submit to you that neither section 50 nor section 4(1) of the Constitution Act would be offended by a general rule that has the effect of limiting the life of the House of Commons to less than five years. I feel that is very clear with respect to section 4(1) of the act, because it simply says no House of Commons "shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.'' It is clear on its face that that is simply a maximum and is not addressed to the possibility of shorter Houses of Commons.
It is not quite as clear with respect to section 50 of the Constitution Act. However, when we read section 50 of the act in full — and especially the words "and no longer'' at the end — I believe that is the best reading of section 50 as well. It is not designed to guarantee the possibility of a full fifth year. There would be no point in that.
I repeat what I said at the beginning. If we do read section 50 of the act as impliedly guaranteeing the availability of a full fifth year, that would still not affect the validity of Bill C-16. It would not do so because section 50 of the act can be amended by Parliament under section 44 of the Constitution Act, 1982.
I do not believe it is essential to the argument for the validity of Bill C-16 that it does not contradict section 50 of the act. I believe it does not contradict section 50 of the act; but if it does, it is still valid because of the availability of the power under section 44 of the act.
Let me turn to a second possible problem with Bill C-16, which concerns the office of Governor General. Again, senators will be familiar with the fact that the unanimity amending procedure in section 41 of the act requires the unanimous consent of the provinces, Senate and House of Commons in order to make an amendment to the Constitution of Canada in relation to the office of the Queen, the Governor General, and the Lieutenant-Governor of a province.
That does not mean that every law that has some impact on the powers of the Governor General can only be enacted by the constitutional amending formula because it only applies to amendments to the Constitution of Canada.
However, in the case of Bill C-16, in my view, there is no effect on the office of the Governor General because of the provision in the opening subsection of the bill, which provides that nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General's discretion. That seems to be a very clear statement that there is no intention of changing the powers of the Governor General, despite the fixed election date rule.
By convention, of course, the Governor General would not on her own initiative dissolve Parliament. She would do so on the advice of the Prime Minister. Bill C-16 seems to be assuming, without expressly saying so, that the Prime Minister would tender the required advice in time to comply with the four-year election dates.
Let me address two situations, which I know have come up in previous discussions by the committee. First, the case of a loss of confidence in government is normally only a problem during a minority government. In the case of a loss of confidence in the government, the normal rules will apply: The Prime Minister will advise the Governor General either to dissolve the House of Commons or to commission as Prime Minister the leader of another party in the House of Commons. The latter possibility is dreaming in Technicolor. Invariably, the advice will be to dissolve Parliament, and normally the Governor General will follow the advice of the Prime Minister. None of that is changed by this bill, and I assume that this bill will have virtually no operation during periods of minority government because they do not last for as long as four years in any event.
Let me turn to the more interesting problem. Suppose the Prime Minister, while still in possession of a majority in the House of Commons, were to advise the Governor General to dissolve Parliament before the four-year period was up. I struggled with that one and read with great interest the comments that senators and witnesses have made with regard to such a situation. The conclusion I have reached is that the Governor General would have the power to do that too. In other words, the Governor General would have the power to dissolve Parliament before the four-year period was up notwithstanding this statute because the statute explicitly says that nothing affects the powers of the Governor General.
It is very unlikely that the Prime Minister would give that advice because it would be presumably very damaging to his party in the ensuing election. People will be assuming, after the passage of this bill, that Houses of Commons will last for four years.
We have to acknowledge, as the committee has noticed in its previous meetings, an issue might arise — free trade was one comparable example and the GST was another, although it was solved in a different way. One can imagine a situation where a policy that was very important to the government of the day was being blocked by the Senate, and the government took the view that the only way out of the impasse was to put the issue to the people. Perhaps in that situation the safest course would still be to wait for the four-year period to elapse. If that was not the view of the Prime Minister, if the Prime Minister did advise an earlier dissolution, then I say that is not precluded by this bill because it expressly preserves the power of the Governor General to dissolve Parliament before the four-year term has elapsed.
The possibility that Parliament could be dissolved before the four-year term elapses and the likelihood that that will in fact be the case where we have a minority government, as we do now, has led — I noticed in the transcript — some senators on the committee to describe Bill C-16 as providing for flexible fixed election dates. That, I respectfully say, is a very good description. We have to acknowledge that in grafting fixed election dates on to a system of responsible government, there has to be some flexibility.
Mr. Chairman, that concludes my submissions.
The Chairman: Thank you. With respect to flexible fixed election dates, you probably know, by a report dated February 7, this year Ontario's election will no longer clash with a Jewish holiday. The provincial election has been moved to October 10 from October 4. That shows we can have a fixed but flexible date, even in a province. Did you want to comment on that before I turn to Senator Milne?
Mr. Hogg: I had noticed in proposed section 56.2(1) of the bill, a power is given — and no doubt using Ontario as a model — to the Chief Electoral Officer to determine that the day, which is yielded by the formula, is not a suitable day by reason of being in conflict with a day of cultural or religious significance, and the Chief Electoral Officer is given the power to choose another day and to recommend to the Governor-in-Council the polling day be on that other day.
That does not give rise to any legal problem because, as senators will know, if Parliament has power to do something, it also has power to delegate to officials or to cabinet aspects of that power. This delegation to the Chief Electoral Officer to pick the actual day is clearly constitutionally valid, and it is interesting to see that Ontario has just done that.
The Chairman: Thank you for that.
Senator Milne: Thank you, Mr. Chairman. I notice, following up on Senator Oliver's question, that the flexibility in this bill is very limited. It either has to be the following day, after October 19, or the Monday of the following week. One of my questions to an earlier witness was: How will this allow the Chief Electoral Officer sufficient flexibility when you consider that some religious holidays in this country now change every year?
Mr. Hogg: I believe the answer is that there is still a risk that there will be some conflict with days of cultural or religious significance. In the period when I was dean of the law school, I got into trouble on more than one occasion with fixing events on days that turned out to be obscure religious holidays. Even if we do due diligence by consulting the principal religious organizations, they are often not fully up to date with some of the more obscure holidays.
Given that the Chief Electoral Officer's discretion is limited, there will be a risk of conflict with a religious or cultural day.
Senator Milne: I am referring to Hindu and Muslim religious festivities connected with Ramadan that change according to the lunar schedule rather than the one that we normally use to fix Christmas every year.
You say that the Governor General would have the power to dissolve Parliament and that it is unlikely that the Prime Minister would give that advice because it would probably be damaging to his party in the ensuing election. This is in the nature of an observation because this act will only come into effect if it is proclaimed, but portions of some recent acts have not been proclaimed yet. That is my concern on Bill C-2; it could also be a concern on this particular bill.
Mr. Hogg: If the bill is to be brought into force by proclamation, obviously it will have to be proclaimed before it becomes law.
Senator Bryden: Before making the recommendation, the press reports that the Chief Electoral Officer surveyed 278 cultural and religious organizations for opinions before moving the date in this particular case. That is a lot of surveys that must be done before choosing any one of these election dates, I would say.
The Chairman: Do you not agree it is preferable to do that kind of canvassing beforehand?
Senator Bryden: Yes, but we are talking about not only the religious days of the Jewish community or of the Muslim community, but also those of 278 cultural and religious organizations. I did not realize there were that many religious and cultural organizations in Ontario. I raised the number simply to state that it is a significant task to move that date.
Senator Milne: It may well be, in the future, that a majority government that opts for an election before its term is up will be seen in somewhat the same light as using the notwithstanding clause in our Charter of Rights.
Mr. Hogg: Yes. I feel it would attract a lot of critical comment. Perhaps, in the end, that is the main way in which these four-year limits really will be protected; that is, by the politics of violating them.
Senator Fraser: Is there any legal guidance about how to interpret the word "significance''? That is, how important would it have to be to how many people for something to be considered a day of cultural or religious significance?
Mr. Hogg: No, I do not believe there is any body of law that would be helpful on that. A court would say that the implication of proposed section 56.2(1) of the bill would be for the Chief Electoral Officer's judgment to determine whether a conflict was of sufficient significance to warrant moving the day.
The short answer is it is being given to the Chief Electoral Officer to make the call.
Senator Fraser: If you have read the testimony, you may recall that the Chief Electoral Officer was not exactly happy about that.
Mr. Hogg: Having just heard Senator Bryden's description of how many possible pitfalls there are in making these decisions, I am not surprised.
Senator Di Nino: Senator Fraser's question dealt with the authority of the Chief Electoral Officer in Ontario and federally, but the legislation does provide for the final authority being the Governor-in-Council. In effect, the responsibility for approving the change of a date still rests, I believe, with the Governor-in-Council. There is a second step of analysis to make that decision, which could be a decision of substantial importance. Am I correct on that?
Mr. Hogg: Yes, that is absolutely correct. Proposed section 56.2(1) of the bill closes by saying that the Chief Electoral Officer "shall recommend to the Governor in Council that polling day be that other day.'' Proposed section 56.2(2) says that if an alternate day is recommended, then that should, without delay, be published in the Canada Gazette, implying it is not likely that the Governor-in-Council will differ from the Chief Electoral Officer. Proposed section 56.2(3) then goes on to say that if the Governor-in-Council accepts the recommendation, the Governor-in- Council shall make an order to that effect and then that order shall be published in the Canada Gazette.
There are the two chains of decision making, but if the Governor-in-Council were to defer to the Chief Electoral Officer's judgment, as to whether there was a sufficiently significant conflict, I do not believe any court would dream of reviewing that decision.
Senator Bryden: That was exactly what I wanted to ask.
Senator Joyal: I am trying to understand the functioning of proposed section 56.2 of the bill. On the basis of what you presented as an outline of the exercise of the prerogative of the Governor General to dissolve Parliament, it is essentially on the basis of the advice of the Prime Minister. Your conclusion and your reading of the bill is that the prerogative of the Governor General to act solely upon the advice of the Prime Minister is not affected by this bill.
Mr. Hogg: Yes. I do not believe it clearly says that, but that is the way I read the bill.
Senator Joyal: With regard to the date of the election, in the case of a conflict with either a religious or a cultural celebration, the decision is given to the Governor-in-Council and not back to the Prime Minister. For that specific circumstance, the bill withdraws it from the Prime Minister and gives it to cabinet.
Mr. Hogg: That is an interesting point. Obviously, you are correct. If the date was changed by reason of a conflict with a cultural or religiously significant date, the Governor-in-Council will make the ultimate choice, based on the recommendation of the Chief Electoral Officer. It will then be the Prime Minister who will carry that message to the Governor General in order for her to put in motion the process for the next election.
It is a little odd that the bill does not give the decision directly to the Prime Minister.
Senator Joyal: That is the basis of your presentation. I will have additional comments, but I do not want to distract the line of questioning from that point.
Senator Bryden: You also made the point, Professor Hogg, that to dissolve a majority government on an issue, it would not be up to the Prime Minister to recommend, but that that would be done by the Governor General. You said if there is an issue that comes up when there is a majority government, and the government decides that it wants to go to the people because it needs a mandate, then the recommendation would not come from the Prime Minister or from the Governor-in-Council in a situation like that.
From where would the Governor General draw her advice?
Mr. Hogg: I did not mean to give that impression. She would get the advice from the Prime Minister even in that situation.
Senator Bryden: I must have misunderstood. Thank you.
Senator Andreychuk: If I understand what you are saying, it is that the rules would apply, except for the fact that we have this new step that might occur. Anything else in convention or law would continue to apply. In other words, the Prime Minister carries the message and the Governor General gets her advice from him. Therefore, you are presupposing that all the other steps remain the same.
Mr. Hogg: I am, and I read all that into the opening subsection of the bill, saying that nothing affects the powers of the Governor General. I see that as flowing back to the Prime Minister as well because we all know that the Governor General, apart from certain very exceptional circumstance, will not act except on the advice of the Prime Minister.
Senator Andreychuk: I want to go back to this changing of the date. We put a specific date; thus, if the discretion to analyze and recommend is in the Chief Electoral Officer's hands, it may be a difficult task. If there is a natural disaster or other impending matter, an election could be deferred. Mr. Kingsley was here discussing the Manitoba flood issue and in thinking about his testimony, it would seem to me it is not the fact that the disaster happens. Rather, it is whether it impedes people from being able to exercise their democratic rights, which is fundamental in our Constitution. Would not the same thinking be applied to cultural and religious factors? The fact that my cultural activity or my religious observance is on a particular day, it would be whether it fundamentally impeded me from exercising my right to vote. For example, Ramadan goes over a series of days. People do carry on their lives. They are precluded from food in certain hours and some other activities, of which I am not fully aware.
Would not the test be, whether that cultural holiday or religious holiday in some way impedes the ability to participate in the election, not the cultural or religious holiday falling on that day? It is a value judgment. It still may be difficult and may need discussions, but it would be weighing those rights, would it not?
Mr. Hogg: Senator, I believe that is absolutely right. I go back to my earlier point that I believe the legislation gives the decision to the Chief Electoral Officer, so that it would be for the Chief Electoral Officer to weigh the various impacts of any given day of cultural or religious significance.
In the announcement of the movement of the Ontario date, I notice that the previous date, which fell on a Jewish holiday — and not one of the common ones — would have precluded orthodox Jews from voting. It fits your criterion. Some people would not be able to vote as a result of this.
I suppose on a day of purely cultural significance, no one would be prevented from voting, but perhaps many people might be away on holiday. Again, the Chief Electoral Officer may ask whether this will stop people from voting.
Senator Andreychuk: We had talked with Mr. Kingsley, previously, about a value judgment on the Manitoba flood situation; it turned out to be the right decision because it did not seem to impede people from voting. The question was whether they could get to those polling stations or whether the polling stations would be moved. He went through what would be the critical analysis for the particular situation. An electoral officer would have to do the same on this: take into consideration all the holidays — which Senator Bryden says is quite a task to identify them — and make a value judgment, which in some cases may be difficult. However, it is a recommendation and a judgment call. It is built into the old act for certain reasons, and now it will be built into this amendment, for other reasons. It would be reasonable to infer the same kind of process would go through.
Mr. Hogg: I agree with that. As more jurisdictions enact fixed election dates and give similar powers to their Chief Electoral Officers, a body of shared information will become available among the various electoral officials. This will help identify various religious and cultural organizations and identify appropriate criteria, but I feel they will be essentially what you say.
The Chairman: I believe it was Senator Milne, at our last meeting, requested that the Library of Parliament researchers do some research for this committee on that point. That is to prepare a note on a day of cultural or religious significance. That paper will be available for this committee, in both languages, within a week.
Let us assume this bill passes, it receives Royal Assent, is proclaimed, and there is an election in the year 2007, in the spring or fall. Under proposed section 56.1(2) of the bill, the next election must be held on October 19, 2009.
Therefore, that election would be two to two and a half years, not four years, after the preceding one. Is that the way you read the act?
Mr. Hogg: I am sorry, senator. Would you give me the scenario again, so I understand it properly?
The Chairman: Let us assume the bill we have before us now passes, gets Royal Assent and is proclaimed. Then there is a general election in the year 2007, in the spring or fall. Under proposed section 56.1(2) of the bill, the next election must be held on October 19, 2009.
Would that not mean that we are not having an election in four years, but two or two and a half years?
Mr. Hogg: Yes, that is how I read the bill.
In fact, one of the oddities of the bill is that the default date does not seem to be four years from the previous election; rather, it is only three years and so many months. I take it I am not nuts in thinking that is right. The formula would have given whatever is the third Monday in October, 2010, but the date stipulates it as 2009.
In your example, that will reset the clock, and it will be the third Monday in October in 2011 when the next election will occur.
If it is a minority government, it will almost certainly be earlier than that.
Senator Joyal: I would like to come back to the issue of what is the constitutional framework of Bill C-16. You stated quite clearly that the proposed section 56.1 of the bill, the way it is stated, maintained totally the prerogative of the Governor General to act upon the advice of the Prime Minister.
Mr. Hogg: Yes.
Senator Joyal: That is what you stated.
Mr. Hogg: Yes.
Senator Joyal: I intended to share that view with you on the basis of section 41 of the Constitution Act, 1982. If we wanted to remove, change, amend or reduce the power of the Governor General, we would need to go through section 41 of the act, which is unanimity. I agree with you.
The bill claims, essentially, to frame the role or the capacity of the Prime Minister to advise the Governor General on the election date. The bill states clearly that the election must be held on the third Monday of October at proposed section 56.1(2). In other words, it limits the capacity of the Prime Minister to advise the Governor General on which day an election can be called.
Mr. Hogg: I am not sure that I follow you into that last proposition, senator, because proposed subsection 56.1(2) opens with the phrase, "Subject to subsection (1), each general election must be held,'' et cetera, et cetera. As counterintuitive as it seems, I am not sure that it does limit the capacity of the Prime Minister to choose another election date.
Senator Joyal: Therefore, that is where you concluded there is the flexibility.
Mr. Hogg: Yes.
Senator Joyal: The built-in flexibility is included in the first opening words of proposed subsection 56.1(2), "Subject to subsection (1).''
Mr. Hogg: Yes.
Senator Joyal: Therefore, if that remains in the overall constitutional framework of the bill, and if a prime minister would not go to see the Governor General after the fourth year has lapsed, on the basis of section 50 of the Constitution Act — that a Parliament can last for five years — the Governor General would not call an election.
Mr. Hogg: I believe that is where I have to go. That seems highly counterintuitive. The bill is assuming that the Prime Minister will respect the time limits that are contained in the bill. It is not easy for me to deny the proposition to which you are leading me.
Senator Di Nino: It is a real political answer.
Senator Joyal: It might be the subject of a seminar.
Mr. Hogg: Yes.
Senator Joyal: The point is, in my own reading of section 50 of the Constitution Act, the prerogative of the Governor General to grant dissolution has to be exercised within a period of five years.
Mr. Hogg: Yes.
Senator Joyal: It is only in the context of section 4 of the Charter, the democratic rights that you have referred to, especially section 4(2), that there are special circumstances whereby the prerogative of dissolution can be extended when there is "real or apprehended war, invasion or insurrection.'' In that case, if there is a vote and it is not opposed by more than one-third of the members of the House of Commons, then the prerogative is not exercised within the period of five years.
Mr. Hogg: Yes.
Senator Joyal: Therefore, if a Governor General faced a situation whereby a Prime Minister did not advise the Governor General after four years, that Governor General would not be in a position to force an election on the coming of the third Monday of October of the year where the bill would be applicable on the basis of what Senator Oliver has mentioned.
Mr. Hogg: I believe that is correct. The way in which the Governor General's powers have normally been regarded are that there are only very limited occasions on which she can order a dissolution against or without the advice of the Prime Minister. That certainly is not one of the well understood occasions. I suppose the Governor General might take the view that, "Here is the statute the Prime Minister ought to have complied with, and I am going to exercise my own discretion to order dissolution.'' That would not be within the existing understanding of the conventions that limit the powers of the Governor General.
Senator Joyal: That is why I want to insist on that aspect of the bill to reconcile the principles of the bill with section 50 of the Constitution Act that limits, within the time, the power or prerogative of dissolution of the Governor General. Are you familiar with The Royal Power of Dissolution of Parliament in the British Commonwealth by Professor Forsey?
Mr. Hogg: I certainly am, and I am a great admirer.
Senator Joyal: Professor Forsey published an article in Freedom and Order, of course with the introduction of Donald Creighton, in 1974. The article is entitled Fixed Dates for Election? I see no instance where Professor Forsey comes to the conclusion that the prerogative of dissolution of Parliament by the Governor General can be challenged on the basis that the Prime Minister would be circumvented except in the very specific circumstances whereby a minority government would not be able to form a government that would last more than a reasonable period of time. Should that prime minister recommend the dissolution, the Governor General can exercise the prerogative of inviting another leader of a party to try to form.
In other words, the dissolution is not automatic in the case where the population has already expressed its view about the kind of Parliament it wants to send or to compose. I have not been able to identify, in any of the writings of Professor Forsey, any other circumstances whereby the Governor General can act on his or her own and compel an election on the basis of a statute if he or she is not advised by the Prime Minister.
Mr. Hogg: No, and I have not recently read that piece by Professor Forsey. I read it in the past and learned a great deal.
I believe where you are leading to — and I do not see any escape from it — is that the Governor General will not order a dissolution, except in the event of a parliamentary crisis of the kind that you describe: The person who would normally advise her has now lost the confidence of the House of Commons, and she may have to make choices that are unpalatable to the Prime Minister. Leaving that to one side, the Governor General will have to wait for advice from the Prime Minister.
Senator Joyal: In other words, the power of dissolution by the Governor General spans over five years, according to section 50 of the Constitution Act. The Governor General acts on the advice of the Prime Minister, and it is the responsibility of the Prime Minister to seek dissolution by the Governor General — either before the four years on the basis of X political circumstances, or after the four years on the basis of Y political circumstances. It goes before or it goes after; there cannot be two sets of context under which the Prime Minister might decide not to respect proposed section 56.2 of the bill to seek dissolution of Parliament.
Mr. Hogg: It may be that I will see a brilliant rebuttal to this, Senator Joyal, late tonight in bed. At the moment, I do not see it. Of course, where you are taking me is that this is an even more flexible fixed election date than I was willing to acknowledge; but, yes, I believe that is correct.
The Chairman: Senator Andreychuk has a supplementary on that.
Mr. Hogg: I hope it is an easier question.
Senator Andreychuk: I hope it is the same question, but looking at it differently. The Governor General's powers are as a result of losing confidence. In other words, there has to be a loss of confidence in Parliament that drives the Prime Minister to give the advice.
One reason might now be — if we pass this act the fixed date is four years — if a Prime Minister does not seek dissolution, this could be why he loses confidence of the Parliament.
Mr. Hogg: Yes. The existence of the four-year period in the statute will have various political consequences. That is a very helpful point. Where we are ending up in this discussion is that for the four-year periods to be effective, they really have to be effective politically.
Senator Bryden: You indicated that you did not believe that Bill C-16 is unconstitutional in relation to section 50 of the Constitution Act.
Mr. Hogg: That is correct.
Senator Bryden: However, I believe you went on to say that even if it is, we can fix section 50 under section 44 of the Constitution Act, 1982.
Mr. Hogg: Yes, that is what I said.
Senator Bryden: When we had the Chief Electoral Officer of British Columbia here, questions came up comparable to what Senator Joyal was dealing with a few minutes ago, i.e. what happens when we go either under or over the four- year period?
Senator Stratton: At your peril.
Senator Bryden: We all operate at our peril around here. In any event, I asked the question, what happens in that instance? In this instance, at least until this is changed, we could use the five years that is in our Constitution.
His opinion was that their fallback position is exactly the same as this; the Lieutenant-Governor of a province would rely on section 50 of the Constitution, i.e. there is no separate constitutional issue. He gave, as an example, that before bringing in their fixed date and having an election on it, every government in the five years previously had gone to the full five years because that is what they are entitled to do here.
That is all apropos to your comment that we could fix this under section 44 of the Constitution Act, 1982. I do not know that it can be done if this is also a constitutional matter for each of the 10 provinces — i.e. that their position, before introducing a shorter term, is that the maximum is five years, and they get their authority from the Constitution.
Mr. Hogg: Yes.
Senator Bryden: The Parliament of Canada, on its own hook, could not change that without the concurrence of the provinces. Currently, most provinces rely on this as their constitutional period.
Mr. Hogg: When I said that Parliament could change section 50 of the act, is section 50 made applicable directly to the provinces under section 90 of the act? This is a point I had not thought about in advance of the hearing, so I am not prepared.
I do not believe section 50 of the act does directly apply to the provinces. What does apply to the provinces is section 4 of the Constitution Act, 1982. Actually, that makes the same point as you were making with respect to section 50 of the act. Section 4 of the act does directly apply to the provinces, and it is not open to Parliament to change section 4 of the act without going through the amending procedures because that is part of the Charter of Rights.
Senator Bryden: Can we do this under section 44 of the act then?
Mr. Hogg: We cannot change section 4 under section 44 of the Constitution Act; but section 4 of the act is simply a maximum period of five years. I do not believe it changes your point that Parliament cannot change section 4 of the act, which is applicable to the provinces as well as to itself.
Senator Bryden: Yes. If it does not apply in relation to section 50 of the act, but it applies to section 4, if we change section 50 of the act, does that then only affect the Parliament of Canada?
Mr. Hogg: Yes.
Senator Bryden: Section 4 of the Constitution Act would still apply to all of the provinces.
Mr. Hogg: Yes; and it would still apply to the Parliament of Canada as well.
Senator Bryden: What have we accomplished then?
Mr. Hogg: Let me go back to what I originally said about the two provisions. Section 4 of the act is very clearly simply a maximum period and we cannot change that.
Section 50 of the act is also simply a maximum period. If it is interpreted as being something more than a maximum period — that is, if it is interpreted as making available the fifth full year — then we could change that. Senator Joyal has persuaded me that we have the fifth year available to us anyway, because of the provision in the bill that says that nothing affects the powers of the Governor General.
Senator Bryden: Right.
Mr. Hogg: That is a very convoluted answer, but your question is a very good one.
[Translation]
Senator Rivest: Canadians on the whole understand that the government's intention here is to have elections held on a fixed date to avoid political gamesmanship or allowing the Prime Minister to enjoy any undue advantage by deciding the election date. Accordingly, the government has introduced this bill.
Elections are held on a fixed date in the United States. The same applies in France. Both countries have presidential systems of government.
Under the Constitution, a government can serve for a maximum of five years. According to the bill's provision, terms of office would now be fixed at four years. Barring exceptions, the Prime Minister may, without any restrictions, decide to set an election date anytime within this four-year period. However, he must bow to the pre-eminence of the vote and confidence of the House.
Practically speaking, in light of the powers and prerogatives of the Governor General in terms of dissolving Parliament, this bill will ultimately not change much, constitutionally, legally or politically speaking, because elections will be held when a government, whether majority or minority, has lost the confidence of the House. That is the overriding constitutional rule that applies.
Therefore, the Canadian public is being deluded somewhat into believing that because of this bill, elections will now be held on a fixed date every four years. Maintaining the confidence of the House is the practical constitutional rule that prevails. This notion of maintaining the confidence of the House is rather broad. We always knew it applied in the case of the Throne Speech, the budget and several other legislative measures.
Occasionally we hear that the survival of the government is riding on a particular bill. The Prime Minister can speak in these terms.
Am I correct in saying that practically speaking, this bill will not change very much in terms of the scheduling of general elections?
[English]
Mr. Hogg: Senator Rivest, please forgive me for responding in English; my French is disgracefully bad. The answer to that is correct, particularly following from Senator Joyal's reasoning that, despite the bill, we will continue to have elections when they are advised by the Prime Minister. In the situation of a minority government, I do not believe anyone will even look at this bill because there is no way that the politicians will keep Parliament flowing in the House of Commons in a minority situation for four years. Even in a situation of majority government it is possible that we would have elections that did not fit the four-year formula. In that latter case, though, the political likelihood, as various senators have pointed out, is that the Prime Minister will feel constrained by and will not want to depart from the bill. Everything you say of substance is absolutely correct.
Senator Di Nino: A comment that has been dealt with extensively today is that the provision, in proposed section 56(2) of the bill, of flexibility is more of a negative part of the bill. However, I feel it is a very positive part of the bill in that it does provide for the ability of the Governor-in-Council to change the date when it is appropriate to do so. I do not wish it to be on the record that this is a negative component of the bill. I am not sure you want to comment, but I wanted to go on the record with regard to that.
Mr. Hogg: I agree, Senator Di Nino. We are all proud of our system of responsible government. Speaking for myself, I prefer it to the system in the United States where the President stays in office, regardless of what happens in Congress. I feel what we are struggling with, and what Senator Joyal's questions are probing, is how do we graft a system of fixed elections dates on to what is a fluid system of responsible government? That is what we are looking at, and there is nothing bad about this dilemma; I agree.
Senator Di Nino: Thank you. The other comment deals with Senator Rivest's question. The issue of confidence must be taken as one of the principle factors of responsible government. We would not want to hinder Parliament from pronouncing its confidence on the government. Again, it seems to be coming out in our discussion as a negative item. I feel it is probably one of the fundamental principles of responsible government. Would you comment on that?
Mr. Hogg: I believe it is the fundamental principle of responsible government. I do not see how we could abandon that and still have a system of responsible government.
Senator Di Nino: I appreciate that.
Senator Rivest: There is responsible government and that is stated in France.
Senator Di Nino: It is a different kind of government.
Mr. Hogg: That is quite right, Senator Rivest. However, we are using the term responsible government here in the technical sense.
Senator Di Nino: Professor, the bill does not spell out or define the confidence convention. There have been concerns expressed that to do so, would or could invite judicial interpretation. As we understand, confidence is a political act. It is a political issue, and that convention would also evolve over time.
Could you give us your opinion whether you feel there is a need to actually define confidence in this legislation, and if so, what do you feel would be the consequences?
Mr. Hogg: I do not feel there is a need to define confidence, and I do not feel it would be a good idea because that would be difficult to do.
We have managed for a long time, without a statutory definition of confidence, and, since this bill does not essentially change the confidence rule, I do not feel there is any reason for us to try to define it more clearly.
It is the Prime Minister who determines confidence and goes to the Governor General when there has been a loss of confidence. If the Prime Minister concluded that he had not lost the confidence of the House of Commons, when in fact he had, that is one of those very limited occasions where the Governor General would be able to dismiss the Prime Minister and dissolve Parliament, or dissolve Parliament and leave the Prime Minister in place. That would leave the Governor General with some choices.
At the moment, we regard the issue of confidence as being determined in the first instance by the Prime Minister and, in a very rare case where the Prime Minister seems to be acting irresponsibly or in bad faith, by the Governor General. I do not believe we would want to change that and have a statutory definition of confidence.
Senator Di Nino: Parliament can also in effect put forth a motion of confidence. It is not just the Prime Minister or the Governor General. I contend this is a fundamental principle of our responsible government. Parliament, in its own right, can create a situation where there would be a confidence issue raised and dealt with in the legislature.
Mr. Hogg: Of course, the question of whether the government has lost the confidence of the House of Commons is a statement about the House of Commons. The House of Commons passed a resolution declaring that the House no longer had confidence in the government, and that was how the last general election started. That is the clearest possible evidence, and neither the Prime Minister nor the Governor General will quarrel with that.
I could imagine a resolution in the House of Commons that might leave some doubt as to whether it really was a loss of confidence or not. In that case, it would be for the Prime Minister, initially, to make the judgment and perhaps end up being overruled by the Governor General.
Senator Joyal: I want to put on record that once the Prime Minister has advised the Governor General on the dissolution of Parliament, the Governor General acts on the advice, dissolves parliament and calls an election. If the date of the election is to be postponed for reasons of cultural or religious significance or a provincial or municipal election as provided by the bill in proposed section 56.2(1), or according to section 59(1) of the Canada Elections Act — because there is a flood, fire or other disaster, as Senator Andreychuk has pointed out — I would be tempted to have a referendum. A referendum would be as disruptive of the electoral process as municipal or provincial elections. By definition a referendum is province-wide.
In this case, the decision to change the election date is not in the Prime Minister's hands. It is transferred to the Governor-in-Council according to section 59 of the Canada Elections Act and according to proposed section 56.2(3) in Bill C-16.
In other words, there is that kind of differentiation of authority of advice.
Mr. Hogg: I am not familiar with the provisions of the Canada Elections Act, to which Senator Andreychuk and you have referred.
Looking at Bill C-16, proposed subsection 56.2(5) does contemplate that there might be a late decision about the change of election date. In the case of Ontario, we still have months to go, so there is nothing confusing there.
However, it is contemplated here, that as late as the end of July, there might be a change. The way the bill is expressed, if there has already been advice from the Prime Minister to the Governor General, it seems as though it does, at least, remove the decision from the Prime Minister to the Governor-in-Council. Presumably, as I said earlier, the Prime Minister will carry the decision of the Governor-in-Council over to Rideau Hall to tell the Governor General.
Senator Joyal: I am trying to maintain the line of prerogative of Prime Minister versus the Governor-in-Council. As you know, the exercise of a prerogative can be framed in different ways, and we know that carries a different political context.
My other question may be a little naive, but, in your opinion, is there any legal sanction attached to a violation of proposed section 56.1(2) of the bill, which states an election must be held on the third Monday of October, if the Prime Minister feels there is a motion of confidence in the House whereby the government has attached its survival to the issue or that Parliament has come to a halt in the context of what Senator Bryden has raised before? For example, the Senate refuses to adopt a bill because the Senate reads that government does not have the mandate to introduce that important transformation.
Is there any legal sanction to this bill?
Mr. Hogg: I do not believe there is any legal sanction. In response to your question, the opening phrase of proposed section 56.1(2) that reads, "Subject to subsection (1),'' and the need to protect fully the prerogative of the Governor General, does mean that we can have elections before the four-year period and even after the four year period, subject to the ultimate five-year limit.
As I said earlier, this bill will be effective if political pressures and considerations make it effective — which I assume they will, assuming that we get back to majority government. It will not be of any effect during minority governments. Despite the word "must'' in proposed section 56.1(2), I do not see this as a matter for which the courts or any other formal legal sanction would ever be appropriate.
Senator Joyal: Finally, when we talk about the government having lost the confidence of the House, normally the Prime Minister seeks dissolution.
There is also the context in which the Prime Minister might come to the conclusion that Parliament is at a halt. There is either an incapacity for the government to have its legislative program carried out by Parliament, or the government — to put it in broader terms — is of the opinion that to be able to pass a major bill, it would prefer to seek the approval of the electorate. Therefore, we would have three scenarios or options for a Prime Minister to seek dissolution before or after the four years, depending on the political context in which we found ourselves.
Mr. Hogg: I believe that is right. The first scenario is the clear loss of confidence. The second scenario sounded very close to that — the government is now satisfied that it cannot carry out its legislative program — so perhaps that is within the first one as well.
Even for the third scenario, presumably the fear about tackling a major measure in the existing Parliament is related to a loss of confidence. I can see that one might be a different situation because there might be a majority for most measures, but perhaps not for the one coming up.
Senator Baker: Three weeks ago, the Supreme Court of Canada made a ruling that quoted you liberally. You know the case I am talking about. You had declared certain actions to be unconstitutional; therefore, you believed that the provinces should compensate certain persons for an indirect tax, which the province had no right to impose in that particular instance. The Supreme Court of Canada brought down a judgment and agreed with you throughout its judgment.
I learned a couple of minutes ago that two provinces, namely Nova Scotia and New Brunswick, have now taken a retroactive position to impose a direct tax to make up for the indirect tax that you claimed was unconstitutional. Would you care to comment on that?
I do not feel it is an unfair question because you know the subject inside out. Is this a surprise?
Mr. Hogg: There is no doubt if a tax was held to be unconstitutional because it was indirect, and if it was possible to keep the money by levying a valid, direct tax with retroactive effect, that would be constitutional. There are cases in which exactly that has happened. The unfortunate taxpayer does not necessarily get the money back.
Senator Baker: It was a great ruling.
The Chairman: Professor Hogg, as I said at the beginning, you are well known by this committee and well respected throughout Canada for your wisdom and wise counsel. You have proven it again today before us. We deeply appreciate your attendance.
As you concluded your formal remarks, you said that this description of a flexible, fixed election date is a good description. In grafting fixed election dates into a system of responsible government, there has to be flexibility. That is a very good way to conclude this portion of our session. We deeply appreciate all your insights and help on this important bill.
Mr. Hogg: Thank you very much for the courteous and extremely stimulating exchange.
The Chairman: We are now delighted to have before us Mr. Chernushenko, Senior Deputy of the Green Party of Canada. We are pleased you are able to appear before us on such short notice.
David Chernushenko, Senior Deputy, Green Party of Canada: Thank you very much. It is a pleasure to be here. Even on short notice, the Green Party of Canada is glad to be invited. We will take our opportunities where we can.
[Translation]
I speak French as well. So, I am comfortable answering your questions in French.
[English]
Unfortunately, I was not able to get my document translated, but I understand it will be made available to you afterward.
First, thank you for inviting the Green Party of Canada to offer our views on Bill C-16. I will now take a few minutes to summarize our views.
I would like to start by stating, as I did to the House of Commons Standing Committee on Procedure and House Affairs, we do not oppose the bill. However, we are not convinced there is any benefit to be gained from moving to fixed election dates. While there are many possible pros and cons, none of the predicted benefits seem so compelling as to make it a priority to move forward with this amendment apart from the possibility of cost savings, which are good.
If the goal of Bill C-16 is to reinvigorate democracy in Canada by making elections more fair, by increasing voter turnout and by increasing accountability, or some other argument in favour of fixed election dates, we do not agree that any of these will be the inevitable result. Canadian parliamentary tradition requires that a government has the confidence of the majority of the House of Commons. Therefore, we do not see how a fixed election date is necessarily desirable or even possible. Having heard the concluding comments of the previous witness, you have heard from a much more learned expert in constitutional affairs.
As a political party that must plan for elections, it might seem that fixed dates for elections would make our life simpler and our preparations more predictable, but, given that a government might fall at any time, we still need to be on a near constant state of readiness, particularly with minority governments. I would predict minority governments will stay with us in the foreseeable future; that is the status quo at the moment.
While the Green Party of Canada believes that many of the aspects of our electoral system need improvement, moving to fixed election dates was not our top priority. We believe that the time and energy devoted to this bill should have been devoted to moving toward a form of proportional representation, something that we, along with others, have been strongly advocating.
We do wish to see higher voter turnout; increased citizen engagement in the democratic process; greater government transparency and accountability; higher involvement of youth, new Canadians and marginalized Canadians; and reduced cynicism about politics in general. We believe that all of these are necessary and laudable goals that must be addressed by the government. However, we are not convinced that a fixed election date will help with any of those priorities.
To reiterate, we are not against fixed election dates, but Bill C-16 does not constitute the significant electoral reform Canada needs. Should Bill C-16 go ahead, let us make sure it is a first step toward more profound changes, such as the adoption of some form of proportional representation, so that more Canadian voters will have their votes really count, and so that more voices will be heard in Parliament.
Senator Milne: Mr. Chernushenko, you stated that you are against this bill because you still must be in a state of constant preparation in case Parliament falls on a vote of confidence.
Senator Andreychuk: I heard they were for the bill. Are you for or against the bill?
Mr. Chernushenko: I suppose it is a matter of interpretation. We are not against the bill. We would not attempt — not that we have the power to do so — to block it, but it is a matter of priorities. It is true that we do not see it changing, in any way, our need to be in a state of readiness.
Senator Milne: Would that change if there were some way of limiting the powers of the Prime Minister to call an election in a shorter period of time?
Mr. Chernushenko: I suppose it might; but, unless we found ourselves in a situation where it was virtually impossible for an election to be called within a set period of time, any political party would be wise to be as ready as it could be at any given moment.
Senator Milne: After being overwhelmed by the evidence that was put before us by the last expert witness on the whole matter, it is interesting to hear a slightly different slant on it from you, Mr. Chernushenko. I appreciate your coming here today, but I have no further questions.
Senator Di Nino: For the record, I do not believe you stated that you are opposed to the bill. You stated that you are not opposed to the bill and that you feel as you have stated.
One reason why this bill was even entertained by the government is related to the manipulation — referred to as such by witnesses here — of the date of polling by governments. We have often seen this in the history of governments in Canada. The ability to manipulate the election date for the benefit of the governing party has been criticized — I feel wrongly and solidly. You are saying you do not see that as an issue of concern.
Mr. Chernushenko: I see the idea of the date being manipulated as a concern, but I would take the historical perspective. Given that it has backfired as often as not on a government to try to manipulate it, perhaps it has not necessarily been to the advantage of any one party over the other.
However, that is the aspect of the bill of which we are most in support. As I understand it, if we can find ourselves at least in a tradition, if not actually locked in a situation, where a Prime Minister cannot manipulate the bill, then I believe that would be a good course of action. If we were to move to a tradition where there is much less latitude or acceptance of a government playing with election dates at their own will, that would be an improvement over the current situation.
Senator Di Nino: Let me deal with your question about historical statistics, in effect. One could argue that the 1997 election and the 2000 election, which were both within the remaining mandate, were manipulated at the benefit of the government at the time, and the government at the time won both elections. I do not see how you could say that it — and I think you used the word — "backfired.'' However, the government in power paid a price. Would you care to comment on that?
Mr. Chernushenko: I agree, in those cases, that was the situation most definitely. Without contradicting what I have said, we would like to see that aspect of current practice curtailed.
Senator Di Nino: I would like to talk about voter turnout. The only example we have so far — we will have one this October in Ontario — is the British Columbia experience. The witness that we had — the Chief Electoral Officer for British Columbia — gave us some statistics, particularly the deputy, who had appeared in the House, that suggested there was some improvement in the voter turnout. The information they provided specifically stated that the improvement was largely with young voters, which is significant. I believe that that is probably a challenge for all political parties these days, to attract, to encourage young voters.
It would seem to me that the only experience and the only testimony that we have had in effect said that, yes, there was an increase in voter turnout, but that the increase was most noticeable with young people. First of all, would you not feel that is an improvement?
Mr. Chernushenko: Yes, I certainly do and if a fixed election date can help us to begin making progress on that front, that is definitely a good thing. Our point has been to use this occasion to say that this is perhaps a small change in the right direction. However, let us see it as a first of many possible reforms to our electoral system in order to engage Canadians, to have them feel their vote is going to count and in order to move away from concepts of strategic voting and cynicism that their vote will not count, so why bother? Should we study other countries that may or may not have fixed election dates, but have implemented other types of reforms or have different systems where the voter turnout is much higher? My response would be, yes, if this is going to help. Let us do it, but let us make it a foot in the door and then move on to other reforms.
Senator Di Nino: I have sympathy with your position on that.
Senator Andreychuk: I just want to be sure. You seem to be guessing at what it might do. Have you not had Canadians come up to you within your party system, or elsewhere, supporting this idea or bringing it to your attention, or is it totally a non-issue in the Green Party?
Mr. Chernushenko: It is only slightly better than a non-issue. I cannot think of a single person who has come to me saying that we have to get fixed election dates, it is a top priority. I am, however, overwhelmed by people — including people who vote for other parties — saying that it is crazy that our electoral system does not allot, in any way, seats according to the percentage of votes a party gets and a range of other criticisms. I cannot say of a single instance where somebody came to our party and raised fixed election dates as a priority.
Senator Di Nino: The voter turnout is one of interest to me. One of the considerations in looking at the time of year, the third week of October, is that that week is citizenship week in this country. Also, we know, as a result of the testimony we have received, that is when students — particularly university students — would probably most all be available. This may, hopefully, create a better opportunity for them to participate in the democratic process of polling day. I wonder if you had given some thought to that.
Mr. Chernushenko: Given that there are very few high-school-aged voters now and they tend to be at home other than some who may have been at boarding school somewhere, the objective of reaching university students, in particular, here at college is very good. Getting university or college students, or anyone who may be away from their family home town, registered and out to vote is a challenge and a very important one to grapple with, so I wholeheartedly support this choice of date as one that appears most likely do that. In the last two elections, particularly 2004, we ran into the problem where it fell just after students had left campus. Therefore, it is a good idea to give enough time to students, who have gone away from home, to register in their new place of residence. Imagine a Carleton University student in Ottawa. This would give them time to register here in Ottawa in their new riding or give them the opportunity to make arrangements to able to either vote while at home for Thanksgiving, for example, at an advanced pole. They would have had the time to make arrangements to vote by mail or whatever system we can put in place. Those are all good options.
Senator Di Nino: I have sympathy with your position, although I believe it is much more complex than a simple statement of changing to proportional representation. We know there are pitfalls in that.
Senator Joyal: You might want to read the testimony that we had from the Chief Electoral Officer of British Columbia whereby a fixed election date has been implemented at least once. We will have the Ontario experience later on this year. However, I do not believe the conclusion of the testimony is as clear or conclusive as Senator Di Nino has mentioned with respect to young voter turnout.
There are many factors where younger voters would turn out. There is no question that the choice of the election date is an important one, because if students are at school, university or college while the election is called, it is an easier opportunity for them to vote where they are at that time. When they are gathered in the school or university they can debate and exchange views; that is part of the democratic life.
I do not want to insist on that, but I feel it is not as clear as Senator Di Nino has put it to us today. We discussed that, as you will remember, Senator Di Nino, and there were a lot of nuances that were brought into these findings.
However, that is not my main point. You say there are other aspects of the electoral system that are of much greater importance to you.
Can I ask where the Green Party is at with your challenge on Bill C-24, and if you have decided to challenge Bill C-2 on the basis of the limits that are put on small parties to access public funding in terms of either voter turnouts or the number of votes that you have been able to collect through a national poll? Where are you on those two legal proceedings?
Mr. Chernushenko: With the change in leadership and a new federal council as of the end of August, we are currently reviewing any of the legal cases we have been involved in to see whether we want to continue to be involved — whether it is still relevant at the moment.
In the case of election financing, we have now been the beneficiary for two elections. With the recent decision that was backdated, we have the potential to be the beneficiary for the election before that as well — before the act was passed and before we were anywhere close to the 2 per cent cut-off limit for number of votes. We are certainly not intending to challenge it; we are the beneficiary right now, so it would not be to our advantage to change anything. Nor do I feel we would ever want to be standing onside with the big traditional parties saying, "Well, now that we get money, let us make sure the other little parties do not.'' That would not fit with our beliefs; we will leave that for others to argue.
Senator Joyal: Let us come back then on the substance of this bill. In your opinion, as much as the Green Party is concerned, the impact of this bill is neutral on the benefit that you believe would ensue to your party if it is adopted or not. Is that correct?
Mr. Chernushenko: I would say the benefit is slightly better than neutral. We can see that it would likely allow us to plan better. More often than not, elections would fall on that fixed date. However, we do not see it as cut and dried as we know that every four years elections will follow on this date. In fact, it is easy to debate the pros and cons of this.
There are advantages to our current system, where a government must maintain the confidence or could fall as a result, in which case we find ourselves in an election. By no means do I see that as entirely a bad situation. It has been part of our tradition, and a government has to keep that in mind as it attempts to pass laws — all of which we took into account.
Senator Joyal: You would not feel hurt under the current conditions — and how you see your future, either short term or long term — that we would maintain the system or that there would be no change to the way we have operated so far.
Mr. Chernushenko: That is a fair characterization. We have not been arguing vehemently in favour of fixed election dates because we have not seen them as something that would bring us such a great advantage, or as such a point of principle that we felt we had to argue in favour of the bill. As I pointed out in my comments and have repeated, we feel there are other areas in which we would put our energy — and where we believe that Parliament could put its energy — to deal with questions of low voter turnout, increasing cynicism and disengagement with the system, for example.
Senator Joyal: The electoral system — the voting system — is more important to you than any other elements of the electoral system in Canada.
Mr. Chernushenko: It is currently the one we have made our top priority. It has been front and centre in our platform — the idea of electoral reform and some form of proportional representation. We recognize it was raised; there are pros and cons and different systems that exist. I know we are not here to debate them today; that is a whole other topic.
We are saying we would like to get to that whole other topic soon after this. We do not, in any way, see it as, "Well there, we have got fixed election dates; we fixed the democratic deficit and voters will be coming in droves now.'' I suppose none of us would feel that will automatically happen. Let us see this as a first step forward and carry on with some other reforms.
Senator Joyal: In your opinion, what are the major determining factors that would bring voters out in larger numbers on the basis of the experiences we have had in our last 50 years of electoral history?
Mr. Chernushenko: There are so many possible ways in which we could try to engage more voters. That is a challenge of each political party — to get out there to the people, to have our message heard, to offer a compelling platform, a compelling vision. That is nothing that can be dealt with by laws. That is a challenge to each party, to be relevant, to be attractive.
There is one factor that can be dealt with through some form of formalized reform, and that is why it is a priority for us. The reason why proportional representation takes on such importance is what I hear over and over again from people — the thought that, "My vote, literally, will not count. If I am a Liberal, in most ridings in Alberta, my vote will not count. If I am a Green voter in any riding in Canada right now, my vote does not count.'' You can go down the list. Each party has its parts of the country where a voter knows their vote will not count.
When some portion of seats are being allocated according to a proportion of the votes that were achieved, immediately every voter in the country feels their vote could count. Their one vote might end up giving a seat to that party that they care about in their hearts. That takes away the cynicism that comes with the strategic vote, which says, "I cannot really vote for the party I like, so I will have to vote against the party I do not like.'' I believe that is the most critical challenge before us with which we have to grapple.
We see it in other countries, which is particularly where I have looked to. There is a much higher voter turnout in systems that are quite different than ours.
Senator Di Nino: Regardless of which side of the debate you sit on, one of the benefits of the changes to electoral financing is that every vote a party now gets means — at this time, with some inflation adjustments — $1.79 to the party.
Senator Joyal: That applies only above a threshold.
Senator Di Nino: Yes, assuming you reach a threshold, which your party has done and likely will continue to do. You talked about the Liberals and Conservatives — the Liberals in Alberta and the Conservatives in some places in Ontario. I suggest to you one of the great advantages to get people to go out to vote for your party is you can build the coffers of your party to be able to fight the next election. I believe that is a very big plus.
Mr. Chernushenko: That has been of benefit to us; there is no question about that. I would say it is a step toward electoral reform in one way, a financial version of it; and, although it gives us money, it still does not give a voice to the party in Parliament.
Senator Joyal: Senator Di Nino touched on one point that is very valid — and which is why I am against a threshold per se. In the proportional system, each vote counts to make sure there would be a number of seats redistributed; I believe, on the same principle, each vote counts in terms of the money that normally is attached — the $1.79.
Senator Di Nino: We may not disagree on that point, but we will have that debate another time.
Senator Joyal: Of course. That is why it is important to me; I might be wrong, but that is why. Parties might not reach the threshold of numbers of votes in all the ridings; they might reach it in some ridings or they might be just below the threshold at the national level and miss it by a couple of hundred votes. In the context of the democratic life of the country, therefore, each party that receives a vote — wherever it is — in terms of public financing, on the same basis, each vote should count. The idea of making public financing accessible to small parties is the norm to maintain.
As a small party, the major reform that the electoral system should go through is proportional representation. Is that what you advocate in your platform?
Mr. Chernushenko: Yes, we do advocate that. In a study of all the democratic countries in the world right now, only Canada, the U.S. and the U.K. do not have some sort of proportional allocation of seats. We have made it clear that we want to retain a geographic representation such that only some portion of those seats would be allocated. We have looked carefully at the experience and conclusions of other countries and that is why we feel so strongly about this issue.
Senator Joyal: Are there any other aspects of the electoral system that are included in your platform in the same context of improving the electoral system in Canada?
Mr. Chernushenko: Of the electoral system, no. I have frequently spoken about rules and procedures within Parliament, as has our party; for example, the very strong whip and the difficulties of private members bills finding their way up and actually being heard. There are a range of other smaller reforms that we believe would be good. However, that is our top priority.
Senator Joyal: That is within Parliament. I am talking about the electoral system — that is the financing, the limits on publicity, your accessibility to "national leaders'" and the voting system per se. Each time there is an election, there is always a discussion about which of the small parties will be accepted and which will be excluded in the debates. That is a permanent element of discussion and debates. On that issue, you do not seem to be making any kind of major representation.
Mr. Chernushenko: We have argued and made our case directly to the consortium of broadcasters who make that decision. There is no public body or independent arbiter to whom we can turn. Many Canadians do not realize this, but it is the consortium of broadcasters who decide among themselves in a room who is allowed into the debates. It is only recently that they have started to respond to our complaints or arguments by saying, "We have these criteria.'' It appears to us as if they have now made up criteria in order to justify why we have not been allowed into the debates. Never before has there been a list of criteria for which one must qualify in order to participate in a debate.
Unless something dramatically changes and Elections Canada suddenly takes control and decides who participates in an electoral debate, it is not an electoral reform per se. That is a case we need to make out of fairness to broadcasters, which is different in nature. Hence, that is why it is not in our platform.
Senator Bryden: I grew up in a political system that was, for the most part, a two-party system. Our country has based been a two-party system. Most of our provinces, even today, are two party-systems, where parties often stay in office for eight years, 10 years or 17 years in the case of some. If you were assessing this bill in an environment where long-lasting majority governments were the rule and not what we are in now — which appears to be almost continuous minority governments — would that change in any way a value of a fixed election date to a party your size or one trying to get established?
Mr. Chernushenko: There are pros and cons in that respect. We do not see a clear advantage to majority governments per se, given the number of countries that are governed well by coalitions, have come to accept that and have learned how to work with that sort of system knowing they will have to collaborate to form coalitions. The down side, though, of frequent elections is that projects take longer and we see a lot more pendulum flipping back and forth.
Senator Bryden: My question is directed more to facilitating a party that is building to become engaged in a fight. If the party knows its enemy; it knows its enemy is likely to be there for another 10 years; it knows that it can get that enemy every four years; and it has got four years to get ready. Do you not feel that is an advantage?
Mr. Chernushenko: That perhaps underscores a real difference for the Green Party of Canada in our perspective. We tend to see Parliament being much less a question of enemies or adversaries and more one of potential collaborators and partners. I will refer to a Swedish example. I just met with the Swedish Minister of the Environment, who was explaining the role that the Green Party had played there. He said, "When you know that another party might as easily be your partner as your adversary next year, it tends to change the type of political dialogue and debate that goes on in many ways.'' We see that as a good course of action. Hence, I do not see it necessarily as a good course of action to perpetuate a kind of vigorous two-party, "us-and-them'' kind of system. In fact, I would look to the U.S. and say that it has become much less about policy and governing well and much more like a hockey game.
Senator Bryden: In Italy, after the Second World War, there was a constant turning of governments. There were so many parties that it was almost like rolling dice. Every time there was a vote and the government lost, they went back to the polls. I do not know the history of it, but it was very difficult to deal with the Italian government for a number of years. We have an expert sitting over there.
Senator Di Nino: I am not an expert; but, in Italy, they often say, "Notwithstanding the government, we still prospered.''
Senator Bryden: Some of us have grown up on the two-party system where, from time to time, the natural governing party had a majority for four or eight years, so that they could get something done. Looking forward to continuous minorities where we have an enlarged city council that meets and decides would be very difficult for some of us dinosaurs to get used to.
Mr. Chernushenko: I do understand it would be a change. Our perspective is to see it as a change potentially for the better, not necessarily for the worse. We often hear the Italian and Israeli example of many parties and a couple of small parties managing to hold the balance of power, but that tends to be very much the exception rather than the rule.
Senator Milne: I want to point out to Senator Bryden that it has been almost 100 years since Ontario had two parties in Parliament.
Mr. Chernushenko, when you appeared before the committee studying this bill in the other place, you were asked to submit a written analysis outlining what you thought were the most important considerations in choosing an election date under the bill. Did you submit that?
Mr. Chernushenko: I will have to look back at that.
The Chairman: You do not remember?
Mr. Chernushenko: No.
Senator Milne: It was not terribly long ago. I was just going to ask you about the main points that you submitted. If there is such a submission, could you send it to this committee?
Mr. Chernushenko: Absolutely.
Senator Milne: Good. With respect to proportional representation, in my opinion, it leads to a system where members of Parliament are almost completely subservient to the wishes of the leader of their party.
Members of parliament are chosen from a party list. They are forced to tow the party line. I know one situation where a very good friend of mine in Europe recently dared to run for the leadership of her party and narrowly lost. She was immediately dropped to the bottom of the list and, consequently, was not re-elected.
Mr. Chernushenko: Would you like me to comment? I can think of many examples in the past couple of years where that exact situation happened with considerable interference from the top as to who would be chosen as the candidate. I do not see that as particularly strong argument against proportional representation.
Senator Andreychuk: Senator Milne, it may be a good example of human behaviour that defies all systems.
If we are using the European example, we end up with an adversarial system in most cases because they start forming coalitions. We would have a coalition of the opposition and of the government. In some ways, that has led to an extreme left and right. There are examples presently in Europe and some of the older democracies where that is the case.
Inevitably, some problems are solved and others are created. It is a dialogue for another day. The representation of more voices in Parliament is where we are headed, despite that. In today's very different societies, there is room for more parties. I happen to believe in the threshold for numbers of votes, because everyone can form a party. Where should it be set? Maybe our threshold is too high and there needs to be some screening. All countries that have proportional representation still have a threshold, albeit minimal.
Mr. Chernushenko: I agree with that. It is a great risk, because we might find ourselves falling below the threshold, but that is a chance we are willing to take.
The Chairman: On behalf of the committee, thank you for coming today and responding to questions not only on Bill C-16, but on the whole democratic process.
Honourable senators, before we adjourn, Senator Joyal will table a document with our committee.
Senator Joyal: Professor William Christian from the department of political science at the University of Guelph, whom I contacted in early January to ask him to review Bill C-16, has forwarded to me some comments in a letter dated January 31. Professor Christian is not able to testify as he is very sick.
He has authorized me to circulate his comments to all the members of the committee and table them. With your permission, I will give it to you.
The Chairman: Thank you very much. Honourable senators the meeting is adjourned until next week.
The committee adjourned.