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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 21 - Evidence, February 14, 2007

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OTTAWA, Wednesday, February 14, 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 4:15 p.m. to give consideration to the bill.

Senator Lorna Milne (Deputy Chairman) in the chair.

[English]

The Deputy Chairman: Honourable senators, I call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order.

Senator Joyal: The first notice of the meeting I received had Professor Desserud as a witness on the panel, and I received a copy of the brief that Professor Desserud prepared for the purpose of our study and debate on this bill. I then received another notice that Professor Desserud was not appearing today. Does that mean that his brief will not be part of our proceedings, or will it be printed as part of what we should have heard today?

The Deputy Chairman: If the committee is agreed, it should be received as part of our proceedings. I understand that Professor Desserud's flight from Halifax was cancelled.

Senator Joyal: That is why I raised the matter. Since he went to the trouble of preparing a brief, I think that is appropriate. I read it, and I think it is a very good addition to and reflection on our debate.

The Deputy Chairman: We are agreed it will be entered into before the committee.

We are continuing our study of Bill C-16, to amend the Canada Elections Act. This is our fifth meeting on the bill. The purpose of this bill 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 the polling day for the last general election, with the first general election after the bill comes into force to be held on Monday, October 19, 2009.

We have before us a panel of distinguished witnesses. Patrick Monahan has been a member of the Osgoode Hall Law School faculty since 1982 and was appointed dean in July 2003. His academic career has been combined with activities in both private practice and public law settings and as an author.

Dr. David Smith is professor emeritus at the University of Saskatchewan and a Senior Policy Fellow at the Saskatchewan Institute of Public Policy, University of Regina. He is also the author of several books and has been a faculty member at the University of Saskatchewan since 1964.

John Hollins was appointed Chief Elections Officer in Ontario in January 2001, and he is an officer of the Legislative Assembly of Ontario. Prior to his appointment, I understand he was Director of Election Services for the City of Toronto. His career began there in 1972 with the City of Toronto's elections office. I have to say that that was the first election in Toronto in which my father did not run. He was Mayor Bill Dennison.

Welcome all of you to a snowy Ottawa.

David Smith, Senior Policy Fellow, Saskatchewan Institute of Public Policy, University of Regina, as an individual: Thank you for inviting me to comment on Bill C-16, dealing with fixed election dates. The proposal to have fixed election dates in contrast to dates chosen at the discretion of the Prime Minister and subject to the consent of the Governor General has as its first premise the excision of privilege, which now attaches to the Prime Minister's monopoly on the use of the prerogative. Simply stated, as it invariably is, the object of the proposal is to level the playing field. In other words, the governing party should not be in a position to benefit from the timing of the general election.

The proposal is driven by a concern for fairness in politics that is not confined to the timing of elections. The same value stands behind amendments to laws regulating campaign financing and election expenses. Institutionalized expression of this value is first found in the 1991 report of the Royal Commission on Electoral Reform and Party Financing, the Lortie commission. That commission was appointed when Brian Mulroney was Prime Minister, but it would be a mistake to see either the values of its report and research studies or the proposal contained in Bill C-16 as a Progressive Conservative or Conservative Party provenance only. Fixed election dates are already statutorily provided for in the provinces of British Columbia and Ontario in each instance at the initiative of Liberal governments.

Fairness, perceived as equal treatment, is widely regarded as an essential condition of electoral democracy. Yet fairness in the setting of election dates may lie in the eye of the beholder.

One other prefatory comment is in order. Part of the attraction for Canadians of fixed election dates comes from their familiarity with the provision as seen in the political system of the United States. All the world knows when the next election date in that country will be, and the one after that and the one after that: on the first Tuesday after the first Monday of November. At that time, all elections — federal, state and local — take place. The coincidence of elections is fundamental to the expression of the will of the people, the constituent power of the United States constitution.

Bill C-16, an amendment to the Canada Elections Act, seeks to do nothing of this order. To begin with, it applies only to federal general elections, which, according to the bill, shall be held on the third Monday of October in the fourth calendar year following polling day for the last general election. Secondly, because Canada's is a monarchical constitution under which the disillusion of Parliament remains a prerogative of the Sovereign exercised by her representative, and because it is a constitutional convention that the government must retain the support of the House of Commons, failing which it normally may seek a disillusion and go to the people, provision must be made for deviation from a fixed election date. Thus, contrary to the title of the bill, dates are fixed only in the most liberal understanding of that term.

Fixed election dates fit neither the practice nor the theory of parliamentary government. That is not to say that they may not be introduced into parliamentary government, but that the claims made on their behalf are exaggerated. If the confidence convention, whereby a government that loses the support of the Commons may seek a dissolution, continues as an understanding of parliamentary government in Canada even in an era of fixed election dates, then that term loses much of its meaning. Consider, for instance, reports over the last two weeks in The Globe and Mail: one, that the Prime Minister had said, "He had no incentive to engineer his government's defeat and trigger an election during the spring session of Parliament,'' and the other, that "Conservative Party workers say subtle messages drifting from the Prime Minister's Office suggest the government wants to engineer its own demise in May to pave the way for a June vote.''

These newspaper reports are mentioned not for what they say about the possibility of a spring election this year but for the easy assumption they reveal that governments can control the timing of an election by forcing confidence votes. There is no reason to assume that the introduction of fixed election dates would alter that assumption. To the extent that a fixed election date may be manipulated, that innovation and its objective — fairness — are vitiated. The probability of this happening is great in light of the partisan complexion of Canadian politics for the foreseeable future, which makes majority government difficult to achieve, and in light of the Canadian view that minority government is the deviation from the norm that requires correction.

To the uncertainty associated with whether a government might calculate to bring on its own defeat must be added the calculation of opposition parties in the House whether to seek to bring about the government's defeat. In either instance, the possibility of an election occurring on a date other than that statutorily provided for in Bill C-16 is apparent.

That is the practical consideration associated with the proposal for fixed election dates. There is a theoretical consideration as well. In a parliamentary system based on the Westminster model, the lower house of Parliament is elected; the government, overwhelmingly drawn from it, is not. That is why there is always a government but not always a Parliament. The purpose of a general election is to test public opinion and bring the legislature into accord with the public mind. Yet the fixed election date proposal seems to work against this result. Putting to one side the issue of confidence, fixed election dates attenuate contact between the people and politicians. At a time when there is so much public criticism about lack of governmental accountability and responsiveness, the idea of limiting expression of public opinion through elections is surprising. In this atmosphere, one might expect quite a different proposal: for instance, limiting the term of Parliament, perhaps to three years, in order to promote more frequent consultation with the people.

Fixed election dates do not give the public greater voice in politics. In fact, the partisan motivation and potential for engineering defeats within the House shifts the focus of attention even more than at present from constituents to the party leaders in the House.

As an aside, there is a parallel to be drawn between leadership conventions — an institutional reform of 80 years ago intended to help democratize Canadian politics — and their influence on the timing of elections, on the one hand, and fixed election dates and their potential to affect the timing of leadership selections, on the other. In each instance, the one event should not become a consideration in the outcome of the other.

A final comment concerns, once again, the value of fairness that is reputed to follow from the introduction of fixed election dates. The rationale of fixed election dates is to respect the mandate received from the people at the time of a general election. If a prime minister's monopoly on advice to the Governor General to dissolve Parliament is deemed to undermine the mandate as well as to privilege electorally the governing party, and thus is judged unfair, why is manoeuvring the defeat of a minority government not similarly pernicious? Why is the judgment of the people less sound when the people return a minority government than when they return a majority government?

I realize that these questions go beyond the immediate concerns normally addressed in the context of introducing fixed election dates. Yet they go to the heart of the matter, our Constitution, for they touch on the prerogatives of the Crown, the life of Parliament and the principle of responsible government.

Patrick Monahan, Dean, Osgoode Hall Law School, York University, as an individual: Thank you. I do not have a written brief, and I apologize for that, but I will comment on two things: first, the constitutional validity and legal effect of the legislation; and second, the policy underlying the legislation of being a policy of fairness, which Professor Smith has commented on.

I have looked at some of the transcripts of the proceedings of the committee, and I understand that questions have been raised as to whether the enactment of this bill would be constitutionally valid and whether it would involve an amendment to the Constitution of Canada, in particular section 50 of the Constitution Act of 1867 or section 4 of the Constitution Act of 1982.

Some senators have raised questions as to whether Bill C-16 would involve an amendment to either of those provisions of the Constitution and whether, if the bill does involve an amendment to those provisions, it is within the power of Parliament to act through Bill C-16 to effect that amendment. My view is that the bill does not amend the provisions of either the Constitution Act of 1867 or the Constitution Act of 1982.

Turning first to the Constitution Act of 1982, section 4 essentially limits the life of Parliament to five years and does not require a minimum period of time for Parliament to continue. Therefore, the proposed section 56.1(2), which would contemplate an election held every fourth year, does not, in my view, offend or derogate from section 4 of the Charter.

Similarly, I read section 50 of the Constitution Act of 1867, which deals with the life of the House of Commons, as similarly providing a maximum period of five years. I know the wording of section 50 is not identical to the wording of section 4 of the Canadian Charter of Rights and Freedoms, section 4 of the Constitution Act of 1982. However, that is the purpose of section 50. It is in effect a provision to limit the House of Commons to a five-year period. That is also reflected in former section 91(1) of the Constitution Act of 1867, which was repealed in 1982 but which had provided a power to Parliament to amend the Constitution of Canada subject to certain exceptions. One exception noted was the five-year maximum life of the House of Commons.

That could not be amended under 91(1), and it was referring there to section 50 of the Constitution Act of 1867, so in effect it was identifying the main purpose of section 50 to limit the term of the House of Commons to five years. For that reason, I do not read proposed section 56.1(2) as derogating from section 50 of the Constitution Act of 1867.

Therefore, I believe this bill does not involve an amendment to the Constitution of Canada. I believe it is valid through the power of Parliament's jurisdiction to enact laws in relation to peace, order and good government of Canada, in relation to matters not provided for under section 92 of the Constitution Act of 1867. It is clearly a matter dealing with the timing of federal elections. It is clearly within Parliament's legislative jurisdiction to enact a bill of this kind.

The effect of this does not derogate from the power of the Governor General. As Professor Smith noted, if the Prime Minister were to advise the Governor General to dissolve Parliament before the fourth year, or before the third Monday of October in the fourth year following the previous election, under the conventions of responsible government the Governor General would accept and act on the advice of the Prime Minister and an election would be held. Proposed subsection 2 in effect creates a four-year clock; that clock would be reset and we would now be operating on a new four-year period, of course subject to the Governor General earlier dissolving Parliament on the advice of the Prime Minister under proposed subsection 1.

I support the policy of the bill. I am here as a constitutional lawyer, but I support the policy of the bill for the reasons identified by Professor Smith. It promotes fairness in the operation of elections, so that both the government and the opposition parties will know in advance when an election will be held.

Professor Smith raised the issue of the government purporting to engineer its own defeat. A government cannot engineer its own defeat unilaterally. It requires the participation of the members of the opposition. If the members of the opposition wish to defeat the government and an election is called, there can be no complaint about fairness or unfairness, because it is not the government but rather the opposition parties that have caused the holding of the election. The euphemism of a government engineering defeat simply means the government has been defeated on a matter of confidence in the House of Commons. I do not regard that as a difficulty. It seems to me it would simply reflect the fact that we must blend the policy of a fixed election date with the institutions of parliamentary government, and this bill attempts to do so.

Those are my submissions to the committee.

John Hollins, Chief Election Officer, Elections Ontario: Thank you for having me here today. I understand that being a practitioner and having survived the first piece of what I am dealing with is probably why I was invited to speak today.

Bill C-16 is very similar to what we are experiencing in Ontario at this time. It came about as an election promise during our last campaign in 2003. The government moved forward and amended the legislation. It was then my responsibility to act on this legislation as it affects me.

It was important for us to understand exactly what the legislation was directing me to do. I would like to explain what our goals were, the process we followed, and then the report that went to the Lieutenant Governor-in-Council a week ago yesterday. Following our report, they consequently made an order last Wednesday to move our date to October 10.

The most important part for us was to review the legislation as we understood it. The legislation as it reads in 9.1(6) is as follows:

If the Chief Election Officer is of the opinion that a Thursday that would otherwise be polling day is not suitable for that purpose because it is a day of cultural or religious significance, the Chief Election Officer shall choose another day in accordance with subsection (7) and recommend to the Lieutenant Governor in Council that polling day should be that other day, and the Lieutenant Governor in Council may make an order to that effect.

Section 9.1(7) reads:

The alternate day shall be one of the seven days following the Thursday that would otherwise be polling day.

This was the target, or, as we would later define it, the wiggling room we were provided.

Section 9.1(8) states:

In the case of a general election under subsection 9(2), an order under subsection (6) shall not be made after August 1 in the year in which the general election is to be held.

We were surprised at the impact that would have on the complete process.

I will go back to the three words that I found very important: "cultural,'' "religious'' and "significant.'' It was important for us to understand those so we tried to define them.

With regard to culture, in the absence of a definition by the Election Act or found in provincial legislation or on ministry sites, we used "culture'' as it is defined by the United Nations Educational, Scientific and Cultural Organization, UNESCO. Cultures embrace literature and the arts as well as ways of life, value systems, traditions and beliefs. In deriving cultural groups, we have deferred primarily to the latter part of this definition and looked at ethnicity and country of origin.

Religion is not defined under the Election Act. Under the province's Religious Organizations' Lands Act, "religious organization'' means an association of persons which, among other things, is organized for the advancement of religion and for the conduct of religious worship, services or rites, and is permanently established both as to the continuity of its existence and as to its religious beliefs, rituals and practices. It includes an association of persons that is charitable, according to the law of Ontario, and that is organized for the advancement of and for the conduct of worship, services or rites, of the Buddhist, Christian, Hindu, Islamic, Jewish, Baha'i, Longhouse Indian, Sikh, Unitarian or Zoroastrian faith or a subdivision or denomination thereof.

In its classic definition, a religion is a unified system of beliefs and practices relative to sacred things — that is to say, things set apart and forbidden — which unite in one single moral community called a church all those who adhere to them.

In the absence of a definition by the Election Act, we interpreted "significance'' to be such that a single elector could not attend a poll to cast his or her ballot due to the preclusion of the cultural or religious day and, as an extension, that they could not participate in the electoral process as we know it. That extension includes being a candidate for office or working as an election worker as the rest of the community could enjoy.

With regard to process, Elections Ontario surveyed organizations representing cultural and religious interests across Ontario during the period October 24 to December 15, 2006. We also considered correspondence sent to us independently from individuals, and we posted and encouraged people to participate on our website. We directed our survey to 278 organizations. Our contacts comprised 56 cultural communities in 10 major religious communities. It was necessary to develop a database of organizations in a manner representative of Ontario's cultural and religious demographics, and we consulted a range of authoritative resources in this respect. Chief among them were Statistics Canada and Citizenship and Immigration Canada.

We applied parameters in developing the database that we believe ensured a scope that was sufficiently broad without being excessive in a way that places this work outside the mandate and domain of the Office of the Chief Election Officer. We referred to a range of authoritative resources. The crossover between cultural and religious communities provided additional assurance of coverage.

We received a cross-section of responses. We received 89 responses from a wide range of organizations. Many were from the Christian, Muslim and Jewish communities as these communities observe dates of significance during the period we were examining. We also considered correspondence sent to us independently from individuals.

We distributed a mail survey and posted it on our website. We asked people to respond to two questions. Question 1: During the period spanning October 4 to October 11, 2007, are there any dates of cultural or religious significance for your organization and the community it serves? The respondents were asked to reply either yes or no, and in the case of yes, to specify. Question 2: The Election Act requires 11 consecutive hours for voting. Normally this is between 9 a.m. and 8 p.m. on polling day. Is the nature of these days significant such that your members would not be able to attend their poll to cast their ballot during these voting hours? Again, we requested a response of yes or no, and in the case of a yes, if they could specify.

Once we completed the report, it became interesting. I always thought that Ontario would vote on a Thursday; if the fourth did not work, move it to the eleventh. As the administrator, you tend to go in with the premonition of what will apply or could apply, and of course it is a fall back; you catch yourself looking for administrative ease and it just does not work that way. You have to wipe the board clean and really work this out. I needed to communicate by paper with the people who had an issue.

The "yes'' answers with specifications were only the beginning. Once we had those, it was important to telephone some of those people to get a better feel for exactly what they were saying and to try to understand and weigh in its significance. Then we took a further step. With the "yes'' answers, we were getting an opinion. We respected that, but we felt it was important to find other opinions within those communities of interest to verify or get a second opinion. Consequently, we contacted academics in the various fields and said, "This is what we are hearing. Here is how it is playing out in the calendar. How would you respond?''

It became very interesting. Suddenly I was not thinking in terms of will it be this date or that date. I had no date. The question became what works best for everyone. I was quite surprised. The last date I thought of was the date I actually chose, and I was led to that date by all the information that staff had collected.

We made the recommendation to the Lieutenant-Governor-in-Council, and last Wednesday they made an order and adopted that date as our next election date.

I am sure you want me to make a comment on fixed-date elections. I have never run a fixed-date election at the provincial level. I have run countless at the municipal level.

How will it apply in Ontario? At the provincial level, I believe that it is different. I think your first inclination is to say that it has to be cheaper, it will be much easier and you will get a better turnout. However, I do not believe any of those things to be true. I believe there are opportunities and I think that the opportunities, if used correctly, will improve the process. You can make it more accessible; your list will be better; you will have more polling places because you will have time to plan it better; and you will deliver it better.

Will more people turn out? I do not believe that any more or any fewer will show because it is a fixed date. I say that because, historically, Ontario municipalities with their fixed date are not getting anything. The U.S., with fixed dates, has probably one the weakest turnouts on the globe. I do not know if a fixed date is the cure to that. I think there are cures, but I do not see that as one of them.

That is my submission. I am open to questions.

The Deputy Chairman: I assume that when you have been quoting you have been reading from the report you presented to the Lieutenant-Governor-in-Council.

Mr. Hollins: I have been reading from the report and from my briefing notes to deal with the press last week.

The Deputy Chairman: Is it possible that we could have a copy of that report? Is it public?

Mr. Hollins: I would have to check with the government because I am reporting to the Lieutenant-Governor-in- Council. They have ownership of my report. I believe I would need clearance.

The Deputy Chairman: If they allow you to give us a copy, it might help us.

I am interested in the enormous amount of work you did to survey all these different groups. Being a Unitarian, I am assuming you did not have a whole lot of trouble with the Unitarians on the date. Will you have to do the same kind of survey in the future before every election, because these dates do change?

Mr. Hollins: I am of the opinion that I have to do this kind of work and I have to understand 365 days a year, because by-elections get called. The way the legislation reads, I believe I would not be doing my job if I did not report, when presented with a writ, whether I considered that date to be good or bad.

I am not sure if the government of the day agrees with that and we certainly have not collided on that in any way at this time.

Senator Bryden: The two provinces that have a fixed election date are unicameral systems; they have only one legislative body. References have been made to losing the confidence of the House of Commons as a reason for the Prime Minister to go to the Governor General or, to use the more unkind approach, to orchestrate his defeat in the House of Commons. I understand that and it will continue.

The question that arises is this: The Parliament of Canada is a bicameral system, and the House of Commons is the confidence chamber. It is quite clear that the Senate of Canada is not a confidence chamber. However, we have been known to defeat government bills, and sometimes more than one government bill in a row. We sometimes dig in our feet — now, this Senate would not do that — and prevent the passage of programs or legislation when the government of the day has complete confidence of a majority government, or, indeed, in a situation where they have virtual, total control of the confidence chamber.

The evidence or reports from this committee from before indicate that there have been at least two situations in which the Senate of Canada has dug in its feet and said, "No, we will not pass this legislation.'' One instance was the free trade debate in which the Senate refused and filibustered and did all kinds of parliamentary tricks and manoeuvres in order to force the issue. Their position was that they would not pass that bill because the government of the day, although it still had the confidence of the elected chamber, did not have a mandate to introduce the free trade bill and, indeed, was elected on the basis of a reverse mandate that said they would not do that. The other instance was the GST debate where, in order to get its way, the government of the day, which had a majority in the confidence chamber, went to the Constitution and exercised its right or its opportunity to expand the level of the Senate by naming eight extra senators, enough to get a majority in that situation.

Would establishing a fixed date of election in our bicameral system have any implications for the two types of situations that I attempted to describe? If so, what would those implications be?

Mr. Smith: That is a very interesting question and, to one degree, I would say you have answered it. One implication is that the fixed election date increases the bargaining power of the Senate, because fixed elections complicate life for a government, regardless of which party. One would need to know the facts of that situation in order to surmise how the government would respond, but that is quite clearly a case of the chamber that is not subject to public approval going back to the people themselves. It would strengthen their hand.

Mr. Monahan: That is a very interesting question, senator. You always have interesting questions. I will deal with the two points. On the second point, the power of the Governor General to appoint additional senators under section 26 of the Constitution Act, 1867, would be unaffected by this bill, so the power to add additional senators would remain.

In the first scenario, I see nothing in this bill that would prevent the situation that occurred in 1988 from occurring again. If the government had a bill that was not passed by the Senate but had been passed by the House of Commons, and the Prime Minister regarded it as a central feature of the program of the government, I see nothing in Bill C-16 to prevent the Prime Minister from advising the Governor General to dissolve the House.

Senator Bryden: The person who would advise the Governor General on that would be the Prime Minister?

Mr. Monahan: Absolutely.

Senator Bryden: We tend to look at situations where elections happen because the House is dissolved because of lack of confidence or loss of confidence in the elected House, but there are situations, and certainly I have been involved in some provincially, where there is no loss of confidence but there is an opportunity presented in the second year of a four-year term, with a date fixed. For whatever reason, whether for bargaining power or for trying to strengthen their position, the government of the day wants a mandate from the people before dealing with an issue. It is because of this initiative that they need the mandate. They are still two years from the fixed date. They could continue to govern. There is no question of confidence here but, for negotiating purposes, for whatever purpose, the government of the day decides that they need a mandate before proceeding. Right now, what would happen, or what I have seen happen, is that the premier and his cabinet take a public position saying that they require this mandate. They report that to the Governor General in this case — it was a Lieutenant Governor in the case I am thinking about — and request that there be a dissolution or that an election be called.

Does having a fixed date that is two years from the time they need to make this deal, or a year and a half to make it even closer, in any way affect that particular government's ability to manage the job they were elected to do, which is to govern the province or the country?

Mr. Monahan: I do not think it affects that in any way. If I could just explain my earlier answer, the crucial opening words of proposed subsection 56.1(2) say, "Subject to subsection (1),'' and subsection (1) says that nothing affects the powers of the Governor General to dissolve Parliament. Therefore, at any time prior to that date, the Governor General may dissolve Parliament on the advice of the Prime Minister.

Legally, there is nothing to prevent the Prime Minister from advising the Governor General to dissolve Parliament. However, proposed subsections 56.1(1) and (2) create a presumption that the election will be in the fourth year on the third Monday of October. It would be incumbent on a Prime Minister in this scenario to argue that there was some extraordinary or unusual set of circumstances that required there to be a mandate for the government to deal with a matter of pressing national interest or perhaps the defeat of an important piece of legislation in the Senate.

In other words, the practical effect of this is to say that the previous situation is no longer acceptable. It will no longer be acceptable for the Prime Minister, virtually at any time but effectively two or three years after a previous election, to simply say, "We will now have an election because I think I can win.'' The presumption is that the election will be held in the fourth year.

However, nothing would legally prevent the Prime Minister, if he claimed that this was a matter of some extraordinary set of circumstances that required an election, from seeking a dissolution by advising the Governor General to dissolve the House, and the Governor General would act on the advice of the Prime Minister, in accordance with the principles of responsible government. That is because the rule of having the election is subject to the power of the Governor General to dissolve the House earlier.

Senator Bryden: Fixing a date is sort of like making a wish that the Prime Minister does not go to the Governor General in order to have the House dissolved. If the Prime Minister did that now, he would have to assess the political implications of doing so after being in office for only a year and a half.

When you say a "presumption'' that this will happen only at four-year intervals, "presumption'' is pretty strong. It may well be that the political necessities of a given administration will dictate whether they go to the Governor General earlier or later.

Mr. Smith: If the argument for fixed election dates is part of the democratic reform argument that one hears, these scenarios, constitutional or not, would undermine that objective. If a government sought to go to the people before the fixed election date, I would presume the opposition would depict it as betraying that objective, that it was all a charade.

Carolyn Tuohy, the political scientist at the University of Toronto, has written a book on institutional ambiguity in Canadian politics, and this would seem to be the flexible fixed date in that you try to have it both ways. In the United States, there is a set date. They set it when they did because they were aware of All Hallow's Eve, and they did not want it on a religious day, but aside from that, with the separation of church and state, they did not have to go through all of that in 1845 when they set it.

With respect to bicameralism, I would not disagree with what Professor Monahan said. Politics is not about making decisions here and now; it is about calculations and long-term strategies. That is where the influence of the Senate would increase, because the Senate may do this, may make life difficult or drag its feet, so it is given additional ammunition to do that, good or bad. It is not that it would do it; it is that the potential is there. It seems to me that this creates an additional arrow in your quiver, if that is the correct metaphor.

Senator Joyal: Professor Smith, in the introduction to your presentation this afternoon you said that a minority government is always presumed to be on the verge of an election. The Prime Minister exercises the fulsome prerogative of dissolution; that is, the government can engineer its defeat without anybody accusing the government that it went beyond the letter or the spirit of an act of Parliament. Of course, if the government has a majority through an election, the prerogative of dissolution is then presumed to be exercised only at the end of a four-year period. In other words, there are two kinds of prerogative of dissolution. There is a prerogative of dissolution during a minority situation, which is total, with no strings attached. However, there is also a prerogative of dissolution that remains during a majority government but that is more difficult to exercise: the government engineers its own defeat or attaches its survival to a vote in Parliament; the government feels that there is an issue it does not have the mandate to decide, not having previously consulted or received a mandate from the electorate on a particular matter; or, in the scenario that Senator Bryden depicted, the government feels that its agenda is blocked in the upper chamber and the government needs to have a mandate to break the deadlock.

Is there not a twist in this bill by virtue of the fact that we are maintaining the prerogative, as stated in proposed subsection 56.1(1), but we are qualifying it in different contexts if it is a minority versus majority situation?

Mr. Smith: It may be. We do not know what the future holds with regard to elections in the partisan complexion of the Canadian political landscape, but there is some reason to think that it will not change that greatly. If that is the case, the traditional Canadian attitude about minority government will have to change. Presumably, the Constitution cannot stand a steady set of dissolutions. There has to be some way that Parliament continues. Senator Forsey used to argue that elections create Parliament, and governments have to live with the Parliament that the people have given them. They cannot go back to the people to get the returns that they want.

It is true that there is, in a sense, a major and minor set of attitudes toward the power of dissolution, when it will be used and in what context. Again, the Crown keeps coming up over and over in these instances, and that needs to be examined quite carefully. It is said, and witnesses also said it last week, that the Crown, in the person of the Governor General, is not in a position any longer in Canada to reject advice from her first minister. One might not be able to continue to say that indefinitely. There might have to be some new rules about when dissolution would be granted.

Senator Joyal: Is it not the law of unintended consequences when you "play'' with the prerogative of dissolution in a constitutional monarchy?

Mr. Smith: In my own view, as you know from what I have written, most people do not perceive this to be particularly significant. All they need to do is read some events in Canadian history to realize how significant it is or to set up a scenario in the future when it is significant because the decision to grant or not to grant the dissolution becomes determinative of subsequent events. It is an enormous power, and I do not see why it is assumed that the dissolution would be granted without any question. It is a central part of the Constitution and needs to be carefully considered, and it comes out now in an unusual way that has not been perceived because of the fixed election.

Senator Joyal: My contention is that it will put the Governor General in a scenario where the Prime Minister would seek dissolution below the four-year threshold or over the four-year threshold because section 50 is still in the Constitution. Bill C-16 does not change it, so the life of Parliament theoretically could extend up to five years. We have seen in the last 40 years parliaments that have gone beyond four years.

The Governor General will have to make a decision on the basis of the advice that he or she receives from the Prime Minister and the letter of Bill C-16. In other words, it adds an additional burden in the factors that the Governor General will take into account when the Governor General has to decide. Suppose, for instance, that the Prime Minister has not come to the Governor General after the third Monday of October when the election is supposed to be called. Does the Governor General phone the Prime Minister on the fourth year and one day to say, "Come and ask me for the dissolution, because according to Bill C-16 you have passed your due date''?

Mr. Smith: I cannot answer that. I would think that somebody else might have noted this as well and the opposition will raise it, but it will become a major issue that would involve the Governor General, yes.

Mr. Monahan: It seems to me that this is a theoretical debate but not a matter of practical reality. Let us consider the situation in Ontario. Let me say first, senator, that I agree with you entirely that the practical effect of this will be much different in a minority situation than in a majority situation. In a minority situation, we will continue to have the practical possibility of an election occurring prior to the fourth Thursday in October in the fourth year, whatever the terms are of proposed subsection (2).

In a majority situation, however, the practical result of this is that, barring some extraordinary or unusual set of circumstances, the election will be held in the fourth year. Consider that in Ontario now, for example, the date has been fixed for October 10. It had been October 4 and now, as a result of Mr. Hollins' report, the Lieutenant Governor has said October 10. That is the date of the election. Mr. McGuinty will advise the Lieutenant Governor to dissolve the legislature because to refuse to do so would be regarded as a breach of an obligation that the election will be held on that day. Everyone is planning on that. The public is expecting it. The media is expecting it. It is not in the realm of practical politics to imagine that the premier would not advise, absent some quite extraordinary set of circumstances, which we do not need to imagine around this table; but a prime minister not advising and the Governor General waiting on the phone and wondering why she has not been advised is not how government works in any event. If there were some extraordinary set of circumstances that prevented the election for reasons beyond the control of the government and it was widely recognized that it was not practical to hold the election, it would be possible to imagine some alternative scenario, but in that scenario it would not be the Governor General exercising discretion, nor would it be the Lieutenant Governor. That question is not directed to the realities that will be created through the enactment of Bill C-16.

Senator Fraser: I wanted to ask about this precise point. This bill does not say that on a particular day the Prime Minister shall advise the Governor General. I can understand why. One does not write into legislation that a Prime Minister shall advise. However, it does say that there shall be an election, and if it passes it will be the law of the land.

Unlike you, Professor Monahan, I can easily envisage a circumstance in which the Prime Minister of the day might think it was not only in his partisan interest but in the greater interest of the country not to go to the people right now.

For example, sure as shooting, if you have different parties controlling the House of Commons and the Senate and the government sends up to the Senate a bill that the Senate does not like but does not really want to vote down, then knowing that there is a fixed election date coming, the incentive is huge for the Senate just to stall. The incentive would be equally huge, depending on how much the Prime Minister wanted this bill, for the Prime Minister to say, "For pressing reasons, I am not going to give the Governor General my advice.'' I think actually that this is well within the realm of practical politics, and so then I wonder what force this law has in such a circumstance.

Mr. Monahan: I must say, senator, that absent some extraordinary set of circumstances in which it would be obvious to everyone that an election could not be held, an election will be held. Any Prime Minister or premier who simply said that, in the interests of the unity of the country or the public policy and so on, he or she deems it unnecessary now to have an election, would be laughed down and within 24 hours that position would be changed, because this bill, as it has in Ontario, will have created the basic assumption that the election will be held on that date.

In fact, I regularly receive emails from different political parties talking about how we are six months or eight months away, or how many days and hours away, and all the parties are proceeding on that basis.

We have to understand that after this bill has been in place for a number of years, it will become the accepted practice, as it is now at the municipal level. We are sitting here in 2007 thinking that the Prime Minister might not want to have the election. It will very quickly become the custom and the accepted practice. This will operate in the manner it is intended to operate: in majority government situations, the election will be held every fourth year; and in minority situations the election will be held in the fourth year if there is not a defeat earlier but, in all likelihood, in a minority situation there would be a defeat earlier.

The scenario of a government bill being held up in the Senate would not cause the government to not have an election. It would be the opposite. They would say, "We should have an election. We will go ahead and have one.'' Not having an election does not solve the problem of the Senate failing to pass bills that the government wishes to have enacted.

Senator Joyal: Professor Monahan, would section 50 of the Constitution Act of 1867 not guarantee a result of a election within five years if that section were amended to read, "Every House of Commons shall continue for four 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''?

Mr. Monahan: Yes. You would have an election every fourth year by operation of law. Section 50 through operation of law prevents the House from continuing for more than five years.

Senator Joyal: Would it not have been better to guarantee an election in four years through amending section 50?

Mr. Monahan: I do not know whether it would have been better or not, senator. It would have required an amendment under section 44 of the Constitution Act of 1982, I believe. It could have been done in that way. I do not have a view as to whether that would have been better. I have to reflect on that. I am not sure why it would be better. I think, because this bill does not involve an amendment to the Constitution of Canada, it avoids the complications that might arise if we were amending section 50 of the Constitution Act of 1867.

Senator Joyal: Would you be of the opinion that to reduce the prerogative of the Governor General from five years to four years would fall under section 41?

Mr. Monahan: That issue would have to be addressed in that context and might then be an amendment under section 41 rather than section 44. However, that debate is avoided here through this bill. If it were section 41 we would have to get all the provinces to agree, and good luck on that one. This bill seems to me a more direct way to achieve the policy of fairness.

Senator Joyal: Mr. Hollins, according to what we have been told, proposed section 56.2 of Bill C-16 is modeled on the Ontario provisions. I think you quoted section 91 or 92.

Mr. Hollins: Actually it is section 9.1.

Senator Joyal: Do you have a municipal election as a context or a condition under which you might suggest to postpone the election, as it is written down in proposed section 56.1 in this bill? This bill reads:

If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election . . .

That is similar to what you presented.

To be clear, the municipal election in Ontario is a fixed-date election for the whole province.

Mr. Hollins: Yes, it is.

Senator Joyal: It does not receive any application because the act that provides for the municipal election date does not coincide with the provincial election date that has been enacted. There is no potential conflict there.

Mr. Hollins: No, not at this time.

Senator Joyal: Does that include referendums?

Mr. Hollins: Referendums could be a different issue depending on when they want to take the referendum to the people. If they wanted to take a referendum as a specific event, the government could certainly make note and they could pick the date they wish to go to the people, at which point that would have to be a consideration.

Senator Joyal: That would be a consideration about which you would advise the government.

Senator Di Nino: Mr. Hollins, proposed section 56.2(1), the section of the bill to which Senator Joyal was referring, states, ". . . is not suitable for that purpose, including by reason . . .''

In your opinion, do the words "is not suitable for that purpose'' give you sufficient flexibility or leeway to deal with a referendum or other unforeseen situations for which you would have to recommend a change?

Mr. Hollins: I am always weary of "suitable purpose.'' Any time I am given legislation and the people giving it to me have not defined what the terms mean, I am not sure exactly what their thought processes are. In this case, who is going to make that determination? We dealt with that in our discussions.

I will give you an extreme example. Someone says there is a harvest in this particular neighbourhood on that particular day that has been planned for a year. We know it is significant to the community. How do you weigh that? It is difficult. Having gone through the process, I think that I would be inclined to try not to define things tightly and to continue to use every means possible to communicate with the public, the actual voters, consider how the dialogue plays out and then, at that point, make a decision. Then you have to say to yourself: I have only seven days to work with. I hope there is a day in those seven days that is going to work.

Senator Di Nino: I understand that, but as long as you are given a certain amount of leeway to assess a situation that comes up, is that not better than having specific, stated exemptions or exceptions?

Mr. Hollins: If it is specific, then the weight of the decision lies on the person who wrote the legislation and made it specific. When it is not specific, it becomes whatever I believe is true and right, and the dissenting voice will make me the person to whom people will object. It is less clear and I have to create clarity from whatever you give me, which is difficult.

Senator Di Nino: You do not make the decision, obviously. You recommend to the Lieutenant Governor-in- Council.

Mr. Hollins: Yes.

The Deputy Chairman: You had a seven-day leeway. This bill provides for either the next day or the following Monday; that is the only leeway provided in this bill. The wiggle room is considerably less here. Would that cause you problems?

Mr. Hollins: Having seven days caused me problems, so as a practitioner I would go for more rather than fewer days.

Senator Di Nino: I had two specific questions for both Professor Smith and Professor Monahan and I believe one of you answered. I just want to make sure that both of you agree that, in effect, this bill does not offend or derogate from section 4 or section 50. If that assumption is correct then I am happy with a non answer, if you wish.

There has been some discussion about the definition of the confidence convention. The concern that some have expressed is that to do so would invite judicial interpretation. Confidence convention is a political act and also over time can evolve. Do you think there is a need and, if so, what kind of issues may arise from it?

Mr. Smith: Is there a need for what, senator?

Senator Di Nino: Is there a need to define confidence.

Mr. Smith: As I understand the question, confidence is really a political decision. It is totally enveloped in political considerations. I do not actually know how one defines it more than it is at present. I think it alters or matures. It is unfortunate that Professor Desserud is not here because he has written on this more than anyone I know of. Most conventions are difficult to define, but I think the confidence convention is extremely difficult to define. I think how one responds to the set of circumstances depends on whether or not there is a convention and what is the appropriate response.

Mr. Monahan: I agree with Professor Smith. Confidence is very difficult to define and I think the act of attempting to define it would, in all likelihood, involve an amendment potentially to section 41 or an amendment that is in relation to section 41 of the Constitution Act of 1982. Attempting to define the convention could potentially alter the powers of the Governor General. I think it is difficult and unnecessary in the context of this bill, because the bill simply says that nothing affecting the office of the Governor General is enacted by this bill.

Senator Fraser: I had intended to ask more about the confidence convention, so thank you all.

This first question is for Professor Smith, although all other contributions will be gratefully and respectfully received. Suppose that it becomes the case, as Professor Monahan suggested, that the public comes to see elections every four years as the norm, the only legitimate time to have an election, influenced by what they see in the United States and by various political pronouncements anytime anyone dares to suggest that maybe we should go to the people before that. We know that whenever they are asked if they want an election now, a huge majority of Canadians say no. If, as I suspect it would, an election every four years with rare exceptions, becomes widely seen as the only legitimate way to go, what effect would that have over time on the confidence convention? I do not think we have to define the convention in order to ask ourselves whether the effect might not be to whittle back what is, after all, at the heart of the Westminster system, and that is the grounds upon which a government, once defeated, must go to the people.

Mr. Smith: In that set of facts, it seems to me one development might be that opposition parties would still seek to have confidence votes, but the confidence would not have the ramification it is now perceived to have. So much depends on what the structure of the party system will be. We have only once had a coalition at the national level. It would change a great deal if no single party could form a government or if it becomes more difficult for a single party to maintain a minority government. There are all those questions.

Taking the facts that you set out, it seems to me you might develop a system or situation where government would have to withdraw legislation that it proposed because it could not secure the assent of the House. It would be, in that set of facts, prevented, psychologically or by public restriction, from going to the people. That is all I can think of right now, but it is obviously a central question.

Senator Fraser: Who knows what the answer would be. That is why I was asking for your expert interpretations.

Mr. Monahan: It is difficult to assess the impact of this bill. I am not certain that it is possible to make the predictions you offer. It may be. I see nothing in the bill, though, that would necessarily result in that. This government has not stated it as clearly, but the previous government of Mr. Martin certainly indicated that it did not wish to treat all matters, or as many matters, as matters of confidence as perhaps might have been previously the case. That was with a view to perhaps loosening party discipline and allowing more free votes and so on, which I think is a desirable change. However, that operates independently of this bill. In the ebb and flow in the confidence convention, it will continue to evolve over time. I do not see anything in the text of Bill C-16 that would cause us to have concerns about the confidence convention. It will continue to evolve through a variety of factors relating to things like party discipline and the desire for members of Parliament of the House of Commons particularly to have greater scope, even the members of the governing party, to vote in a manner different than the Prime Minister might wish them to.

Senator Fraser: I have not asked Mr. Hollins because I am assuming this is beyond his area.

Mr. Hollins: I would prefer not to weigh in on this, yes.

Senator Andreychuk: We have been talking about majority and minority governments. This is not my field of expertise, but coming from Saskatchewan, it seemed there was an expectation that around the fourth year an election should be called. When you stretch it out beyond that, you stretch the patience of the electorate. It worked that way in Saskatchewan. You start hitting about the fourth year, and there is a lot of talk about why there is no election as opposed to whether it will be called. When I came to Ottawa, the talk was about whether the government will fall on confidence and who will engineer the fall. Will it be the government itself, or will it be the opposition? That is the one issue that the public has raised. If we had a fixed date, we would stop some of this gamesmanship, not only in the hands of the Prime Minister but also in the opposition, and particularly in minority times. Does this bill not play out whether we have a minority or a majority government or whether we go into coalitions? It is aimed at a public's lack of appetite for this kind of game. Whether in fact it will stop it or change it is still an issue and a matter for speculation, but it is a response to people's wanting more certainty.

Mr. Smith: I can see it as a response. It just seems that when you have minority governments, as has been said this afternoon, there will be attempts or the need to have elections more frequently than every four years. There is nothing wrong with that particularly, except the whole purpose of fixed elections seems to be somewhat lost. It only leads to further confusion on the part of the public. I do not quite see what the gain is unless you can be assured that you will achieve that objective, but it is not clear to me that you will, given that the political situation is such that there is no way of controlling that.

The Deputy Chairman: Gentlemen, I thank you very much for appearing before us, coming this long way to this snowy, stormy spot. I understand that one or two of you may have planes to catch, so we will let you go to try to catch them.

We now have before us representatives from registered political parties in Canada. Anna Di Carlo is Secretary of Democratic Renewal for the Marxist-Leninist Party of Canada, and Jean-Serge Brisson is Leader of the Libertarian Party of Canada.

Anna Di Carlo, Secretary of Democratic Renewal, Marxist-Leninist Party of Canada: Our party stands for fixed election dates. We have always gone on record as supporting fixed election dates as one component of a democratic political process that would assist Canadians in exercising their right to elect and to be elected.

When the Conservative Party introduced Bill C-16, they said they had conducted a poll that showed that Canadians want fixed elections. We do not agree with the development taking place where polling has replaced public deliberation in Parliament and in committees; nevertheless, that is what they said.

However, we do not think that they asked Canadians if they wanted an expectation that maybe there would be fixed elections dates. The main argument being presented is that while we do not have fixed election dates in the strict sense of word, we will have an expectation. We think an illusion is being promoted that somehow it will change the situation we have in Canada in terms of the Royal Prerogative being exercised to the advantage of the political party in power.

Canadians also had an expectation that the income trust would not be taxed. They had an expectation that the GST was going to be reversed several years ago. They have had many expectations, including the expectation that political reforms should take place in an above-board manner and that they should improve the situation facing Canadians.

We have followed closely what we think are rather somersault arguments through which it is being said that the parliamentary system can have both the confidence convention intact and fixed election dates.

There are many aspects of the deliberations that concern us. The one that I have already mentioned is the notion that an expectation is equal to a law.

Another concern is that fixed election dates will give rise to an extended election campaign. We were told by the Conservative Party representatives in Parliament, as well as by others, that we should not worry about this, that we will not have an extension of election campaigns. We were told that at the very minute that we are seeing Conservative election campaign advertisements run. Again, we are being treated somewhat non-seriously when we are being told that some reforms are taking place.

It is also claimed that fixed election dates will make the system fairer. This is also a big lie, in our opinion. We would like to bring to the attention of the Senate committee the hypocrisy and duplicity we see as a small political party in Canada. If the government is interested in fairness, why is it challenging the Ontario court ruling that struck down the 2 per cent and 5 per cent threshold requirements regarding public subsidies to political parties? We are currently investigating how it could happen that even though the law was struck down as unconstitutional, the subsidies paid out in January 2007 did not get paid to all the political parties. The law of the land said that it should have been paid to all the political parties, but somehow the law was simply avoided.

Our biggest concern with Bill C-16 is that it is just one of many reforms that are being introduced with disregard to how the system is supposed to work theoretically, why it is not working, and what solutions we need to bring the conformity into line with the needs of the polity today.

The needs of the polity today are not to have some illusion that the Royal Prerogative will be curbed by an expectation. It is to have real mechanisms whereby we can start participating in governing, from the process of selecting candidates, participating in setting the agenda for elections, deliberating the issues that are facing us, and exercising control over our elected representatives.

Finally, we have a real concern about the changes being introduced by dismissing in a very cavalier manner, as far as we are concerned, the constitutional limits that are in place. When Prime Minister Harper started to talk about the more recent series of reforms that he has introduced, when he spoke I think in B.C. he said that his government would be very practical, that we needed to have reforms that could be brought about by getting around the Constitution. "Getting around the Constitution'' does not sound very good. The more politically acceptable term is "by not reopening the constitutional negotiations.''

We think that this is opening a door to governments circumventing the Constitution, which is not good for the polity. In many cases, it is being reduced to a matter of interpretation. In many cases the government has told us that laws that were passed had undergone constitutional scrutiny, but we have found out that that was not the case. Many different reforms are being introduced in a piecemeal fashion — Senate reform, identification requirements for voters, the fixed election dates, the changes that are turning political parties in Canada into subsidized appendages of the state. These reforms will have profound effects on the restructuring of Canada's political institutions and they should not be introduced this way.

If there are to be fixed election dates in Canada, a full deliberation is merited on why fixed elect dates are incompatible with the existing system. Again, we are being told it will affect the confidence convention. At the same time, we know that conventions get changed through practice. Where has the deliberation taken place that the confidence convention, which is considered crucial to the system of responsible government, will not be transformed through a series of Parliaments holding fixed elections? I do not know how many members of Parliament or senators have paid attention to the deliberations that our own governments through the years have held, for example, on fixed election dates. We decided it was a worth exploring Forsey and Eglinton's study on the question of confidence because it struck us as peculiar that in 1984 fixed election dates were rejected with a great deal of thought and a great deal of consideration of the complexity of the problem, and today it is being said that there is no problem.

In reviewing Forsey and Eglinton, it came to our attention — confirming what we see in real life — that the mechanisms of the system of representative and responsible democracy that were once meant to curb the exercise of Royal Prerogatives, such as the confidence convention which was conceived to stop absolutism, have been turned into their opposite. They have become nothing more than the mechanisms through which the leaders and upper echelon of political parties browbeat into submission the members of Parliament, so that it can no longer be called a parliamentary system that has mechanisms to curb the executive powers. What we are seeing is a reversion to absolutism.

In that light, Bill C-16 will contribute to this. It will contribute to strengthening the upper echelon control of members of Parliament of the political parties themselves. The Senate would be taking a heroic stand if it opposed Bill C-16.

It is a motherhood issue. We are told, who on earth could oppose fixed-date elections? Of course, we know that everyone would like to have a system that gives us consistency and that does not allow for the abuse of power for self- serving partisan ends. However, this system does not allow fixed elections to be tacked onto it without complete incoherence being introduced.

Those are our remarks on the question. We hope that Bill C-16 will be given consideration in the light of all the reforms that are taking place in this period.

Jean-Serge Brisson, Leader, Libertarian Party of Canada: Having been a member of a municipal council, I understand Mr. Hollins was talking about municipal elections. They have fixed dates. We knew when we got elected when we would have to run again. We could plan for it. We made legislation in our municipality based on the fact that we had a set date. It has been like this for as long as I can remember municipally, and there have never been any problems.

I do not know what it will be like provincially. We will be facing a provincial election this year, and we are trying fixed-date elections for the first time. I am not involved in the administration of the party at the provincial level. Federally, I can say that the Libertarian Party has a hard time having candidates committed to an election that can happen at any time, whether it is a minority or a majority government. We have had majority governments call an election. Mr. Chrétien called an election within three or three and a half years, and people were all ready for the fourth year. When the election came along, we were not ready.

We are now trying to plan for an election that can happen at any time. Minority government, as I understand from the professor who was here previously, will be a different animal, but if you have a majority government, you know the election will happen at certain time in a certain year. People can commit. I am speaking for the needs of my party specifically. I do not know about other parties, but for us it would be a good thing.

Having said that, on the surface, I have to agree with . Di Carlo that if, in order to bring this in, we are circumventing the normal procedures and not respecting the Constitution or its rules, it is no better. Without going into detail, the British North America Act has been infringed upon for provincial powers, federal powers. That is not known by the general population. Only the few people who are political animals know this. The average person on the street probably does not care because it does not change their way of living from day to day. Every time you infringe on the Constitution, you demean it. Once you break it once, it is easy to break it second and third time.

I have read the bill, but not in the detail that other parties have. I just had a chance to take it down and read it last week. As I said up front, my party would look forward to set dates for the federal election, but I have not seen how that is being brought in. I was listening to Ms. Di Carlo's concerns in that regard.

On the whole, the average person would probably like having fixed elections. There are many pros and cons. The average person will know we will have an election in October. We know that the federal government will be running for re-election and they will probably start paying more attention.

We were asked to participate in a discussion on how to raise interest in the general population to participate more in an election. I would say that stability on how or when an election will be called would help generate interest. When you are not sure when an election will be called, then you do not have the same interest. People like the stability of knowing something is going to happen at a certain time because then they can plan for it.

I have not been able to look into this, but if there is a constitutional concern, I think it should be examined more closely.

The Deputy Chairman: I take it, then, that you both believe that the public and your party would be helped by fixed election dates, period. You want fixed dates and not the system in this bill that has been described last week and then again earlier today as flexible fixed election dates.

Ms. Di Carlo: Yes, we would be in favour of fixed election dates worthy of the name.

Senator Joyal: I am trying to understand the reachable objective of "small parties.'' I do not think any party is small; it has a platform and stands for its conviction. I do not like the label "small.'' I think it is demeaning.

I would expect that parties like yourselves would prefer to have elections whereby the will of citizens is expressed on important issues, whatever the time, rather than pour yourself into the concrete of a fixed election.

If you succeeded in getting MPs and became a minority Parliament, you would certainly, as the party that holds the balance of power, have a more direct influence on the shaping of the consensus in Parliament. That being the case, the political context in which you can exercise your activities would be more welcome than a situation whereby you are excluded from Parliament for four years in a system by traditional parties.

As Mr. Brisson has mentioned, there are fixed elections at the municipal level and there are at the school level as well. There are two fixed elections where the turnout is less than 20 per cent or 30 per cent. Those fixed elections are well planned ahead of time because the chief electoral officer at the municipal or school levels knows beforehand. All the idealistic context of a fixed election system is there and in fact the turnout is the lowest of them all. I do not see a direct relation between the systems; it depends of the issue of the day.

Rallying candidates also depends on other factors. It depends on how much your platform seems to be in tune with what the general opinion perceives as the issue of the day. For instance, I will take the environment as an issue. The environment, of course, is an issue today that is pervasive on the electoral stage. Any party that has a strong environmental platform will appeal to a larger segment of voters than one that does not happen to meet the issue of the day. It does not mean that it is not important, but you seek votes so you want people to be interested in what you propose.

I have difficulty reconciling what your best electoral interest is and what is, in fact, the reality of fixed election dates at a certain level. In the United States we have heard that the turnout is minimal. We have municipal and school elections. There is no immediate benefit of one system versus the other, in my opinion.

The only benefit is that the Chief Electoral Officer knows his date and knows that six months ahead of time he will rent, reserve telephones, train his people and so forth. I understand that.

In terms of democratic participation, because this is what it is all about, I am not sure that it will increase the democratic participation as much as we are told it will. If that system was superior to the unfixed election system, we would be able to measure a real impact in terms of other elections.

When the Chief Electoral Officer of British Columbia was here he did not equate the fixed election date with a higher level of participation. He was able to deconstruct the return.

I have some difficulty in clearly understanding your position in this context. Maybe I did not catch the argument or maybe this change you support would be included in a much broader scheme of changes like that with the proportional vote. Our colleague Senator Stratton is a supporter in principle, for instance, an alternative vote whereby you would have a man and a woman and so on. I can understand that there is an electoral system that produces a better recognition of the preference of voters, but I have difficulty equating the benefits of a fixed election as much as the other system that Senator Stratton is a supporter of in principle. I would like to get your reaction to this, unless I have misunderstood what you have told us.

Ms. Di Carlo: You may have. We support a fixed election date as part of a political process we think would be quite different than what we have today. For example, we do not think that the selection of candidates by political parties in which less than 2 per cent of the population participates is a good way to go. We think a mechanism should be introduced whereby all Canadians, all electors, would participate in the candidate selection process.

Senator Joyal: Even though they are not members of the party?

Ms. Di Carlo: Correct. Political parties would have no special place. If a political party wants to recommend one of its candidates, it could, but as part of the official election proceedings, there would be a way for people in a factory to be able to select somebody from amongst their peers. They could say, "We think this person, whom we know and we see what he does for us day in and day out, should be put forward as a candidate.'' At a university, students should be able to nominate a student, and so on. I do not want to get into all of that. That is not the purpose of the discussion.

We do not see how this system can be fixed. This is a very serious proposition that we are presenting. Forsey and Eglinton pointed out an interesting complexity that came into being. In order for political parties to democratize themselves, they had to introduce the election of leaders by party convention. It was just not acceptable to carry on having leaders selected by the upper echelon of the party. By doing so, the Prime Minister was no longer answerable to the cabinet and the party caucus. He could say, "No, I am answerable to the party.'' It actually diminished the role, the status and the dignity of the individual members of the House of Commons who used to be the ones who selected the leader. We used to have a system in Canada where political parties did not play the role they play today. You could actually say members of the House of Commons were running the show.

There are volumes of documents about how political parties in Canada today can do quite fine without members. They have lots of money from the state. They have advertising and marketing agencies. The Conservative Party has now introduced a new thing, which just shocked me. We are having public consultations in Canada on the political process that will be run by a private company. It is beyond comprehension to me that Parliament is being obliterated, that committees of the House are being obliterated, that Senate discussions are being obliterated, and that we will pay $1 million to a think tank to tell us what Canadians think.

Everywhere you look, this system is not working, and Canadians know it. The party system was supposed to have a party in opposition and a party in power and equilibrium was created that way. Even if you did not get your party elected, you were represented by the party in opposition. That has not been working since 1993. Nobody wants to say that it is not working. That is our perspective. We think there has to come a time in Canada when this is seriously tackled. It is a dangerous situation. A very glib attitude is taken towards the fact that we have lower and lower turnout and that young people in Canada do not have any interest.

Fixed election dates cannot be tacked onto the present system.

Mr. Brisson: Having fixed dates is just one aspect of an election. To make an election interesting, or to have people interested in participating, the issues and candidates have to be there. I can tell you that in my municipality, the turnout has always been 40-odd per cent. In Ottawa it is always around 30 per cent, but in this last election, it was around 50 per cent. Why? The candidates made a difference.

I understand what you are saying and, yes, there is rampant apathy, but there are components you can work with. One of them is a certain stability of the election event. It is now, and it will happen at this date. The candidates can plan and say, "Okay, I think I will run at that time.'' Some will come up at the last minute, but others will say, "I intend to run,'' and they will start putting down the framework for people to work for them. They will start canvassing people early. In my municipality, the turnout is always close to 50 per cent, but in the next municipality, the winner gets in by acclamation. It does not matter when the election is set. Anomalies will happen all the time, but the main thing is to get people interested in participating or taking part in an election, and one component is the stability of a set date.

I do not know how you will bring it in to be within the terms of the Constitution. I hope it is will be looked upon properly to not infringe, but at this point in time I am here to address that aspect.

The electoral act has been played with way too much. We lost registration because it was being played with back and forth. We lost candidates because the fees were played with. It destabilizes the electoral process when it is constantly being played with. You have people interested in coming in, whether federally, provincially or municipally. Provincially and municipally, they do not play that much, but federally, it has changed from one end of the spectrum to the other. I have a hard time keeping people interested because the system is not stable. They just do not know where they are going from one election to the other. The rules are changing all the time. We are talking about the dates, but I think if anything the electoral act should be looked upon as something that should be stable and not change for a period of time so that we can start having Canadians interested in participating in the process. The first issue is the date.

Senator Joyal: Thank you.

Senator Fraser: I find this quite fascinating. I thank you both for being here. I want to come back to this business of the confidence convention. I might observe that I came to this place having had no political experience, but I have been here a bit over eight years now. In a funny way, I think the confidence convention still works in practice a little more than people give it credit for, but through the caucus system. When our side was in government, I watched Prime Ministers of both majority and minority governments working hard to keep their caucuses in line and changing policies to reflect what the caucus was telling them, although that does not make it into the newspapers. I would bet a chunk of my retirement that the same thing is happening in the party that is now in power. This does not come up in the political texts, but it is an element of this complex reality.

Mr. Brisson, your experience has been with municipal politics, which is not Westminster style, and you thought that worked well. Ms. Di Carlo, I am not sure whether you think the confidence convention is beyond repair and should be forgotten, or whether you think ideally it might be repaired. In either case, we have a constitution that says that the Constitution of Canada and the Parliament of Canada shall reflect the British parliamentary system, which is a system of responsible government. The confidence convention is the heart of that. How do you square that? Are you proposing full-scale constitutional conventions, or are you saying we should take this bill and run with it and make the best of a bad lot?

Ms. Di Carlo: Our understanding is that that is precisely the problem. We have a system that is based on not having vested sovereignty in the people. We still have a constitution that vests sovereignty in the Crown. That is what we think the problem is. Sovereignty should be vested in the people. It is about time.

Senator Fraser: We have a bill before us upon which we will have to vote, yes or no. Would you vote yes?

Ms. Di Carlo: I would vote no, and I would like to reiterate why I would vote no. In this period, we are seeing a bit- by-bit approach to electoral and political reform that is creating incoherence in the system, whether we are talking about the financing of political parties and the impact it will have that political parties are getting 80 per cent of their funding from the state rather than from their members; whether we are talking about this legislation that is introducing a strange animal into the system; whether we are talking about the significant reforms to the Senate that we think are being introduced through stealth, about which it is simply being said, "Do not worry about the Constitution. We have looked at it. It is fine. This does not alter the constitution.''

Senator Fraser: Do you think it should?

Ms. Di Carlo: We think there should be constitutional reforms that empower Canadians. Also, if within the given system we are going to have reforms, we do not say all or nothing. That is not our approach. We look at every reform and ask whether it will the system and help Canadians participate. In many cases, proposed reforms will help. However, in this case, we do not see how it will, and it will increase cynicism when two years from now an election is called because whatever party is in power thinks it will be expedient to do so, and it is not good to have increased cynicism.

Senator Fraser: You might be right about that.

This question is to Mr. Brisson. Like Senator Joyal, I have been listening to the arguments in favour of the fixed election dates and have been taken aback to realize that every argument that sounded hopeful to me ended up being shot down by the chief electoral officers — it does not cost less and it probably does not increase turnout. We have been told that it does improve the capacity of the election administrators to communicate with voters, which may be useful in terms of increasing democratic participation. You raised the valid and interesting point that it probably enables parties to attract better candidates because there can be some certainty in their planning of their lives and, obviously, a good candidate already has a life.

Mr. Brisson: Most of them do.

Senator Fraser: Are there any other advantages to fixed dates that you have not mentioned that you would care to offer to us?

Mr. Brisson: A party and the candidates can plan financially.

You have professional politicians and amateurs. I am an amateur, and I dabble into it because I like it. I have always said in certain presentations that if you don't do politics, politics will do you. When I have said that to people who are apolitical, they are surprised. That is why I have attracted some people to say, "Okay, well what can I do?'' At some point, when I present something to them and it is unstable, I lose them. I lose potentially good people. I lost my train of thought here.

Senator Fraser: I was just asking if you could think of any other advantages, in your experience. You fundamentally made the point that it just enables better planning for those who are involved in the process. That is the strongest thing.

Mr. Brisson: As I was saying, you have amateurs and professionals. The majority of the candidates in elections today are not mainstream. They come into politics because they want to participate. They want to take part in the process. They will take a stab at it once, maybe twice. Some will bite and stay at it for a long time and others will say it is too complicated, and we lose them because of the complexity of the procedures. The date is just one of them. Like Ms. Di Carlo, I could give you list.

Senator Fraser: This bill is only about dates.

Mr. Brisson: Yes, but you have to look at having an electoral act that is stable, that does not change from one election to the other, that is not too complicated and makes it easy for people to participate. The date is the first step.

Now, again, I am not here to tell you how to pass it through the chamber. I did not go into that. I am just giving you my concerns. It would be easier for us, but as to the legalities and the constitutionality of it, I have not gone into that. I hope it will follow the proper procedure to be constitutional.

The Deputy Chairman: Thank you very much, and senators I thank you for taking part in this. I thank the two of you for coming out on such a miserable snowy night.

The committee adjourned.

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