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37th PARLIAMENT, 3rd SESSION

Standing Committee on Procedure and House Affairs

EVIDENCE

CONTENTS

Tuesday, March 9, 2004

1535

The Chair (Mr. Peter Adams (Peterborough, Lib.))

Mr. James Sprague (Senior Practitioner and General Counsel, Office of the Chief Electoral Officer)

The Chair

Mr. Jean-Pierre Kingsley (Chief Electoral Officer of Canada, Office of the Chief Electoral Officer)

1540

1545

1550

The Chair

Mr. Ted White (North Vancouver, CPC)

Mr. Jean-Pierre Kingsley

Mr. Ted White

Mr. Jean-Pierre Kingsley

1555

Mr. Ted White

The Chair

Mr. Ted White

Mr. Jean-Pierre Kingsley

Mr. Ted White

The Chair

Mrs. Judi Longfield (Whitby—Ajax, Lib.)

Mr. Jean-Pierre Kingsley

Mrs. Judi Longfield

Mr. Jean-Pierre Kingsley

The Chair

Mr. Jean-Pierre Kingsley

The Chair

Mr. Jean-Pierre Kingsley

Mrs. Judi Longfield

The Chair

Mrs. Judi Longfield

The Chair

Mrs. Judi Longfield

The Chair

Mr. Jean-Pierre Kingsley

Mrs. Judi Longfield

Mr. James Sprague

The Chair

Mr. James Sprague

The Chair

Mrs. Judi Longfield

1600

The Chair

Mr. Jean-Pierre Kingsley

The Chair

Mr. Ted White

The Chair

Mrs. Judi Longfield

The Chair

Mr. Serge Cardin (Sherbrooke, BQ)

The Chair

Mr. Serge Cardin

Mr. Jean-Pierre Kingsley

Mr. Serge Cardin

Mr. Jean-Pierre Kingsley

1605

The Chair

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. Jean-Pierre Kingsley

Hon. Lorne Nystrom

Mr. Jean-Pierre Kingsley

1610

The Chair

Mr. Jean-Pierre Kingsley

The Chair

Hon. Lorne Nystrom

The Chair

Mr. Ted White

Mr. Jean-Pierre Kingsley

Mr. Ted White

Mr. Jean-Pierre Kingsley

Mr. Ted White

Mr. Jean-Pierre Kingsley

Mr. Ted White

The Chair

Hon. Joe Jordan (Leeds—Grenville, Lib.)

1615

Hon. Joe Jordan

Mr. Jean-Pierre Kingsley

The Chair

Mr. Jean-Pierre Kingsley

The Chair

Mr. Miguel Figueroa (Party Leader, Communist Party of Canada)

1620

The Chair

Mr. Miguel Figueroa

1625

1630

1635

The Chair

Mr. Ted White

Hon. Joe Jordan

Mr. Ted White

Mr. Miguel Figueroa

1640

Mr. Ted White

Mr. Miguel Figueroa

The Chair

Mr. Miguel Figueroa

The Chair

Mr. Ted White

The Chair

Mr. Ted White

Mr. Miguel Figueroa

Mr. Ted White

The Chair

Hon. Joe Jordan

1645

Mr. Miguel Figueroa

Hon. Joe Jordan

Mr. Miguel Figueroa

The Chair

Hon. Joe Jordan

Mr. Miguel Figueroa

1650

The Chair

Hon. Lorne Nystrom

Mr. Miguel Figueroa

Hon. Lorne Nystrom

Mr. Miguel Figueroa

Hon. Lorne Nystrom

Mr. Miguel Figueroa

1655

Hon. Lorne Nystrom

Mr. Miguel Figueroa

The Chair

Mr. Miguel Figueroa

The Chair

Mrs. Judi Longfield

Mr. Miguel Figueroa

1700

Mrs. Judi Longfield

Mr. Miguel Figueroa

Mrs. Judi Longfield

Mr. Miguel Figueroa

The Chair

Mr. Miguel Figueroa

The Chair

Mrs. Judi Longfield

The Chair

CANADA

Standing Committee on Procedure and House Affairs

NUMBER 007

3rd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, March 9, 2004

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Chair (Mr. Peter Adams (Peterborough, Lib.)): Colleagues, we will begin. We are here pursuant to the order of reference of Wednesday, February 18, 2004, Bill C-3, An Act to amend the Canada Elections Act and the Income Tax Act.

Before I introduce our witnesses, I'd like to deal with a few housekeeping things. I would be grateful--and I've given notes to each of the parties--if the parties were to ask their whips to announce in caucus tomorrow morning that our round table on the committee review of appointments will take place tomorrow afternoon at 5:30. You have the information on that.

I propose that on Thursday we return to the democratic reform item we are considering. Also, it's very likely that there will be a short in camera session, perhaps 20 or 30 minutes, on security. If those of you who will not be here on Thursday were to convey that to your members, I would be grateful.

I suggest that on the first Tuesday back we do the estimates. We'll discuss this again on Thursday. Mr. Kingsley may be very interested in this, because I'm going to suggest that on Tuesday, March 23, it's quite likely we will do the estimates for Elections Canada. By the way, we could do other estimates, but I'm floating that now. We have a couple of weeks before we get to that point in time. The committee has to do the estimates at some point.

Are there any questions on our future plans, colleagues?

Today we have as witnesses Jean-Pierre Kingsley, Chief Electoral Officer of Canada; Diane Davidson, deputy chief electoral officer and chief legal counsel; and James Sprague. James, I'm not sure of your title. Could you say it for us?

Mr. James Sprague (Senior Practitioner and General Counsel, Office of the Chief Electoral Officer): I'm the senior general counsel.

The Chair: That sounds very impressive.

We also have in the room Miguel Figueroa, who is the party leader for the Communist Party of Canada. Miguel, you've previously appeared before our committee. We welcome you again. You are a person of great significance to us. I understand it is your intention to make a presentation following this one.

Colleagues, we will have a presentation by Elections Canada and then some questions and discussion. We'll then go to Miguel, followed by questions and discussion.

Jean-Pierre Kingsley, before I introduce you once more, we want to thank you. All the parties here spoke on the private member's motion on student voting. We greatly appreciated the announcement. I don't know if you are going to be mentioning it at your press conference on Thursday. All the parties here support what you are doing.

Jean-Pierre Kingsley, we are in your hands.

[Translation]

Mr. Jean-Pierre Kingsley (Chief Electoral Officer of Canada, Office of the Chief Electoral Officer): Thank you, Mr. Chairman. It is a privilege for me to appear before this committee during your study of Bill C-3, an Act to amend the Canada Elections Act and the Income Tax Act. It is an additional pleasure to meet the new members of the committee, some for the first time. Thank you for having been kind enough, Mr. Chairman, to introduce my colleagues who are with me here today.

My presentation will last about ten minutes. I will address the possible responses to the ruling of the Supreme Court of Canada in Figueroa v. Canada (Attorney General). I will explore four options in that regard. In addition, in light of House of Commons motion M-398, I will briefly review Elections Canada's initiatives to address the decline in voting among young Canadians.

I will not recount the steps that have led to Bill C-3. Rather, I have brought copies of a backgrounder, which has been distributed to you. These two pages relate the history of the development of political parties as it relates to the Canada Elections Act.

In his testimony before you on February 24, 2004, the Honourable Jacques Saada underlined the importance of having legislation adopted before the June 27, 2004 deadline set by the Supreme Court. I have also noted the minister's statement that legislation adopted before the deadline may not be a permanent solution. He indicated that this and a range of related issues would be addressed during the one-year review of the implications of the Figueroa ruling and other aspects of the electoral process, which is no mean feat.

The effect of not adopting legislation before June 27, 2004 is that, should an election be held after that date, the party registration regime would be frozen. The Chief Electoral Officer would not be able to register any party that had filed an application for registration and had acquired eligible party status before the election, because there would be no legally valid provisions for registration.

Second, any party that is now registered but did not field 50 candidates in a general election would nevertheless retain its registered status because there would be no legally valid provisions for deregistration. That would essentially be the only consequence for failing to act on this issue. At least it is the only one of which I am aware.

At a minimum, this would place the Chief Electoral Officer in a very uncomfortable situation. There might be some measures I could take, but I have not examined this in detail. There would also be a possibility of court actions, particularly by parties that had hope to acquire registered status and the associated benefits.

On balance, my preference is that there be a legislative response to Figueroa. Bearing in mind that your committee is carrying out a pre-study of Bill C-3, I have noted that it has some latitude to explore different avenues. I therefore wish to offer three additional options for your consideration.

One option is to pass the bill as is. As you know, in order to increase access to the electoral process, it would allow any party that runs at least one candidate in an election to be eligible for registration. Additional requirements would be added to the application for registration: a resolution of the party appointing the leader certified by the leader and another officer of the party; the names and addresses of all the party's officers, of which there must be at least three in addition to the leader, along with signed consents from all the officers; the names and addresses of at least 250 members, with a signed declaration by each member; all registered parties, new and those now registered, would have to resubmit this information every three years beginning in 2007. Parties that are now registered would have to submit all this information within six months of the bill's coming into force.

¹ (1540)

This bill would also mean that, for the first time, the Canada Elections Act would include a definition of a political party. It has been possible to regulate political finance without such a definition. Political parties, even if they share certain characteristics, often have quite different objectives. The act does not even require them to register. This is something that is not properly understood, but it is not necessary for a political party to register under the Canada Elections Act in order to exist as a political party. This is often overlooked, but demonstrates the incredible openness of the Elections Act. If they decide to register, they may obtain access to certain public benefits, but the choice is theirs. That is generally why political parties tend to register.

The proposed definition of a political party is linked to a number of administrative and enforcement provisions in the bill. As a requirement for registration, the party's leader would have to submit a declaration that, consistent with the proposed definition, one of the fundamental purposes of the party is to “participate in public affairs by endorsing one or more of its members as candidates and supporting their election”. This declaration would have to be resubmitted every year by all registered parties.

In order to decide whether a party qualifies for registration, the Chief Electoral Officer would be allowed to ask its leader for any relevant information to enable him to assess the party's fundamental purposes. This information would include: the party's constitution, articles of incorporation, bylaws or other information indicating its purpose; the party's political program, annual reports to members, fundraising plans, advertising material and policy statements; information about the nature and extent of the party's activities; information about the party's funds, their sources and the uses to which they are put; information about the interactions of the party with other entities.

This provision of Bill C-3 means that the Chief Electoral Officer would need to go beyond looking at facts, notably the number of candidates nominated by a party, to questioning the purposes and non- financial activities of political parties.

The Chief Electoral Officer would also have the power to deregister any party at any time if he is not satisfied that it has 250 members and at least three officers in addition to the leader, or if the party fails to file the 250-member declaration and/or the declaration about the party's fundamental purpose. In addition, the Commissioner of Canada Elections would have the authority to apply to a court if he had a reasonable suspicion that the party does not have the required fundamental purpose. If the court found that to be the case, the party could be deregistered.

[English]

Although the bill does not require that a party submit any of the specified information along with its registration application, the Chief Electoral Officer could, if necessary, request certain reports and other documents to assist him in carrying out this new role. This would complicate and lengthen the process for reviewing applications for registration, but more importantly, the responsibilities the bill would assign to the Chief Electoral Officer and the commissioner could oblige them to question the purposes of political parties to a greater degree than under the present act. Indeed, in assessing conformity with the proposed definition of political party, they could be called upon, the Chief Electoral Officer and the commissioner, to make value judgments on how and why parties participate in public affairs.

If the intention of the definition of a political party and the related provisions on registration and deregistration is to prevent abuse, I would point out that a number of controls already exist in the statute. Under section 245 of the Income Tax Act, an income tax credit claim for the wrong purposes can be disallowed. There is also an offence for tax evasion. They are deterrents to the formation of political parties solely for the purpose of handing out income tax credits to contributors. In addition, the various public reporting provisions in the Canada Elections Act, expanded last year by Bill C-24, require detailed audited financial reports. They allow the Chief Electoral Officer and, if warranted, the Commissioner of Canada Elections to investigate possible non-compliance by political parties and other entities regulated by the statute.

To address these concerns the committee may wish to consider an alternative. Under this alternative, the bill would remain as drafted, but the proposed definition of political party, along with the administrative and enforcement requirements that are linked to it, would be deleted. The other requirements for party registration applications would stand, and this could provide assurance to those concerned about possible abuse. In my view, this second legislative approach has considerable merit.

Still another legislative option would respond mainly to concerns about the unforeseen consequences of broadening access to the range of public funding and other benefits under the act through the one-candidate rule, if one can call it that, and using the Canada Elections Act to avoid potential tax abuses. Under this third legislative approach, the act itself would simply be amended to grant eligible parties that run between 1 and 49 candidates the three benefits stipulated by the Supreme Court, the rights to issue income tax receipts, to have their name on the ballot, and to receive a candidate surplus--strictly those three. Under these revised rules, eligible parties would be subject to the same reporting requirements as registered parties. However, they would not gain access to other benefits, including reimbursements and annual allowances, even if they meet the relevant vote thresholds. I assume that the rules for access to these benefits will be studied as part of the committee's one-year review of the act, one way or the other.

I offer these three alternatives, beyond a do-nothing approach, for the committee's consideration. Should the committee wish to pursue either the second or third legislative option, or any other for that matter, my officials would be pleased to work with the committee and I would be pleased to appear before you at any time.

Before I conclude, I would like to say a few words about Elections Canada's initiatives to address the decline in youth voting. Motion M-398, which the House of Commons adopted unanimously on February 17 last, reflects eloquently the widespread concern that a significant share of our young people are not opting into the electoral process. Drawing on in-depth research on the factors behind non-voting and various consultations, my office has developed an action plan to respond to this worrying trend. We are, in effect, enhancing our own programs through concerted efforts to encourage more young people to register and measures to make the voting process more accessible to them. I will be pleased to tell you more about these measures during the time allotted for questions, if there is any.

¹ (1545)

We're also working with a number of organizations that promote youth participation. One of them is Kids Voting Canada, which was mentioned by name in Motion M-398. I met its founder, Taylor Gunn, about two years ago. Taylor was developing an innovative educational program to provide students who have not yet reached voting age with the opportunity to experience the electoral process through a parallel election in their schools. During last fall's Ontario provincial election some 335,000 students took part in Student Vote 2003.

On March 4, last week, I announced a joint initiative with Student Vote 2004, which is run by Taylor Gunn. There was a press conference to that effect, and my press statement was made available to you through the documents that were circulated earlier. Under this program, students will vote for the candidates in their school's electoral district. The results will be broadcast on national television, posted on the web, and published in newspapers across the country. Elections Canada will provide electoral supplies for the project at a value of approximately $165,000--this is mainly from our existing stock--along with a financial contribution of $50,000 for services that they will have to purchase. Following the next general election I will report to Parliament on the results of Student Vote 2004, as well as all our initiatives to promote young Canadians' understanding of and access to the electoral process.

Mr. Chairman, my colleagues and I are pleased to respond to your questions.

Merci.

¹ (1550)

The Chair: We greatly appreciate that. Thank you very much.

Ted White.

Mr. Ted White (North Vancouver, CPC): Thank you, Mr. Chairman.

Thank you, Mr. Kingsley, for your presentation. I admit to being quite surprised by the extent of your presentation, because the bill seems to be fairly simple in content. I'm actually shocked at some of the things you have pointed out in this bill, with suggestions for alternatives. I get the impression that your department, your staff, were not consulted, or if they were, not very deeply, prior to the preparation of this bill. I also get the impression that you are not very comfortable with its content and the position it will place you in, having to assess the qualities of a political party.

The main question I was coming here to ask you today, which I will certainly ask in a moment, is related to all these things. If we were to seriously deliberate on this bill based on your input, the bill might not pass before the next election, if it comes in the spring, as everyone expects. So I hardly know where to begin, but my first question will be, if this bill did not pass and an election was called in the spring of this year, considering that the existing law has already been ruled unconstitutional by the Supreme Court and the new law to replace it would not be in effect, what would you, as the Chief Electoral Officer, do in the matter of enforcement? Would you enforce the existing law, unconstitutional as it is, or would you act in the spirit of the new law that would be in place after something like this is passed? It's a bit of a conundrum for you. What would you do?

Mr. Jean-Pierre Kingsley: I would effectively do neither. I would have to respect the fact that there is no law. I have indicated in my remarks--and this is the first of those four scenarios that I have described to you--the non-legislated response. That is to say, with parties that are not already registered, I couldn't register them. So if there is a party that would meet any kind of threshold, there is no authority for me to register such a party. The election time is the time when that becomes a possibility, depending upon the number of candidates fielded or supported by a political party. I could no longer do that, so they would not gain registered party status at that election. The other thing I could not do is deregister a party that does not field the requisite number of candidates, because those two clauses would no longer exist. That's it. That's the vacuum that would exist, no more, no less.

Mr. Ted White: Your preference, then, is to have some sort of resolution of this problem.

Mr. Jean-Pierre Kingsley: This is my conclusion.

After I mentioned that to you, I said I had a preference for a legislative approach. For the legislative approach I gave three scenarios: one that I would call the present bill; the other one, the bill, but eliminate those portions that deal with the definition of parties and authorities of the Chief Electoral Officer, but keep the rest; and the third one effectively says just handle those three matters that the Supreme Court has ruled on and fill the void for those three matters. That was it.

I would like to address, if I may, Mr. Chairman, the premise to the question. With respect to consultation, there was consultation with my staff and there was consultation with me concerning the bill, and the bill that is before you was acceptable to Elections Canada. There was no major issue. But I did have a responsibility. Because of the way the study is proceeding in terms of procedure, I know the committee has wide latitude, and I therefore felt duty bound to explain to you my thoughts about the various degrees of legal intervention that could satisfy this void at this time.

¹ (1555)

Mr. Ted White: Do I have one minute, Mr. Chairman?

The Chair: Yes.

Mr. Ted White: Then, Mr. Kingsley, can you indicate which of the three suggested solutions would be your preference? I also ask you if you were aware that the committee was ready to do clause-by-clause last week to push the bill through the House without any adjustments at all, and that in fact there may not be any chance to make any amendments or changes, although you are under the impression that we were going to do so.

Mr. Jean-Pierre Kingsley: The second legislative approach talks about, when you're studying clause-by-clause, there being a possibility of removing some of the clauses, which is what I allude to. If I were to be absolutely honest with you, it is that scenario with which I would feel slightly more comfortable than any other. That is the slider that I was presenting here very honestly and very openly for you.

Mr. Ted White: Thank you. I'll pick this up on the second round.

The Chair: It's Judi Longfield, then Serge Cardin.

Mrs. Judi Longfield (Whitby—Ajax, Lib.): Thank you, Mr. Chair.

Following up on what would give you greater comfort, can you indicate which clauses...?

Mr. Jean-Pierre Kingsley: We can provide that in detail to you. We have something ready in that respect. It is not something I want to circulate right now, but I could actually quote numbers to you if need be.

Mrs. Judi Longfield: Could you do that? If we are indeed going to look at clause-by-clause, then I--

Mr. Jean-Pierre Kingsley: Would you feel more comfortable--I know I would--if I were to provide that separately to the committee, Mr. Chairman, rather than rattling it off now?

The Chair: Do you have copies or could we make copies?

[Translation]

Is it in both official languages?

[English]

Mr. Jean-Pierre Kingsley: It is not in the two languages, and for that reason I would not like to table it.

The Chair: We can't circulate it in the committee at this point.

Mr. Jean-Pierre Kingsley: I'll have that to you by first thing tomorrow morning.

Mrs. Judi Longfield: However, that may not be sufficient for my purposes if we're going to consider clause-by-clause.

The Chair: At the committee level I can't solve that for you. We do not circulate documents in only one language.

Mrs. Judi Longfield: Perhaps then I could ask that I get the numbers.

The Chair: James or someone, would you care to read the numbers out to us? Is that what you want? These are the numbers of the clauses, right?

Mrs. Judi Longfield: I want the numbers of the clauses that would be affected.

The Chair: James.

Mr. Jean-Pierre Kingsley: James Sprague will mention the numbers to you, Mr. Chairman.

Mrs. Judi Longfield: Thank you.

Mr. James Sprague: I hope everybody's well rested.

This would be the technical implementation of Mr. Kingsley's suggestions for the second thing: first, remove clause 1 of the bill; second, amend subclause 3(3) to remove the reference to paragraph 366(2)(j); third, remove subclause 3(4) of the bill.

The Chair: How much more is there? Are we one-half of the way through or one-third of the way through?

Mr. James Sprague: There are three pages of technical detail in order to remove--

The Chair: I don't think we can do it. By the way, the only way we could is to copy it and give a copy to the interpreters, because it isn't really fair to them. And it strikes me as a very awkward procedure, anyway. We're not going to circulate the document.

Judi, it's your time.

Mrs. Judi Longfield: Mr. Chair, I think we're all a bit frustrated. I would like to be able to look at the clauses we would need to either delete or amend before we consider the bill clause-by-clause. I can also appreciate that we can't circulate it, but I would like some commitment from the chair that we're not going to deal with it clause-by-clause until such time as we have that information--and I understand the time constraints.

º (1600)

The Chair: Mr. Kingsley.

Mr. Jean-Pierre Kingsley: Mr. Chairman, I was not aware that you would be doing clause-by-clause today, or we would have been prepared for that. But I did indicate that one of the lawyers, James, could stay for the clause-by-clause today, and then we could deal with things as they occur, if that would be acceptable to you.

The Chair: Ted.

Mr. Ted White: I don't have any objection to that if we are approaching this on the basis of good will. We'll truly consider these clauses with the input that counts. I'm prepared to do it on an ad hoc basis like that, on a one-by-one basis. But I think I would have to side with Judi on this. If it's really not going to be serious, we have to take time to study this properly.

The Chair: It certainly is serious as far as I'm concerned. I'm in the committee's hands.

Mr. Kingsley, we were in the mode of listening to the two witnesses, then proceeding to clause-by-clause. It may well be that we'll start clause-by-clause and continue some other time. We could use the services you describe, and then use the document, but I have no idea how that's going to proceed.

Judi, it's your time. Are you okay with that?

Mrs. Judi Longfield: For the time being. I'll raise my objections again when we start clause-by-clause.

The Chair: I have Serge Cardin, then Lorne Nystrom.

[Translation]

Mr. Serge Cardin (Sherbrooke, BQ): Are we still discussing the amendments? The question I wanted to ask was about something else.

The Chair: This is your turn.

Mr. Serge Cardin: Fine.

Good afternoon, Mr. Kingsley. I had a brief question about the fundamental purposes. On page 4 of the English version of your presentation, you refer to one of the fundamental purposes of the party, which is “to participate in public affairs by endorsing one or more of its members as candidates and supporting their election”. You refer to one fundamental purpose, but you do assume that there could be several.

Then, on page 6, you continue as follows:

...the Commissioner of Canada elections would have the authority to apply to a court if he had a reasonable suspicion that the party does not have the required fundamental purpose. If the court found that to be the case, the party could be deregistered.

I think the definition of the fundamental purposes, with the exception of the one we saw earlier, which could lead to the deregistration of a party, becomes rather arbitrary.

Mr. Jean-Pierre Kingsley: Mr. Chairman, Mr. Cardin has put his finger on the uneasiness I feel about this, which I tried to convey in my comments. I am trying to tell the committee that there is an authority underlying the bill, to which I want to draw the committee's attention.

Obviously, if Parliament were to decide that this is the role of the Chief Electoral Officer, I would play that role; I would make the necessary judgments. However, in my view, it is important that the committee realize, as you pointed out, that this adds a new dimension to my role and one that is of the same scope as that which is currently provided for in the bill. I could have remained silent on this matter, but I think it is my duty to cause you to think about this. You certainly clearly understood the implications of what I was saying.

Mr. Serge Cardin: Unless, Mr. Chairman, there exists within... Before people can register a party, they have to set out their objectives, their components and their fundamental purposes. If all you have to do is ensure that a party applies its fundamental purposes, there is not too much of a problem. However, if you have to interpret the fundamental purposes, that becomes a significant difficulty.

Mr. Jean-Pierre Kingsley: Even interpreting the application of the purposes is not that obvious. We might imagine that this would be relatively easy for what I would call the well-established parties, but in the case of smaller parties, which do not have the same representation in the House of Commons, this could present interpretation problems, because they are not the same size and their impact and activities are different. This could lead judgments that could and would be challenged. While that is not unusual in my work, it is important that you understand that this does entail a new dimension of my work.

º (1605)

[English]

The Chair: Lorne Nystrom, then Ted White.

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you.

I have just a couple of questions. I want to ask you about the ruling that takes you from 50 candidates to one in order to become an official political party. Could you elaborate a bit more on that? It seems to me 50 is too high, but on the other hand, one is too low, and I can see people abusing that. You could get one person with some particular niche idea. I can think of a member of Parliament.... Well, Jim Pankiw, for example, has a certain point of view that's controversial to most. All you need to do is run one candidate and get 250 people as verified members and three other table officers in addition to the leader, and you then qualify for the tax credit for four years; and with the website and the mailing list, you can raise a fair amount of cash and have a nice little campaign on behalf of your causes from the public purse.

So I'm wondering if you could elaborate a bit more on what you think of the court's decision in respect of having the threshold go down to one. It seems to me there might be some latitude there to move. What is your advice? What is your opinion? What is your thought?

Mr. Jean-Pierre Kingsley: The judgment of the Supreme Court has effectively shaken one of the pillars underlying the Canada Elections Act, which we've all assumed was there, that a political party, to become registered and have access to all these benefits and these responsibilities, has to have 50 candidates. If one considers the judgment, one realizes it's going to be very difficult to arrive at another number without having clearer justification. The court has said, don't come back with another number if it's arbitrary. I think thought will have to be given to what might constitute a political party outside establishing a specific number of candidates as a test. I think there will have to be other tests. Frankly, if we had an opportunity to review what exists in other countries in more detail than we've been able to, we might be able to benefit from the experience of others in respect to this. On the other hand, we may still have to come out with something that is purely Canadian in fabrication and in origin.

I don't have a definitive answer to that for you today. This is why I've indicated what I've indicated about the bill as it stands before you today. I don't have that answer. If I could come and say it's six and a half candidates for the following reasons, that's what I would say. I don't have that.

Hon. Lorne Nystrom: Judge Iacobucci, who was the lead judge in this, said, “It may well be that the government will be able to advance other objectives that justify a 12 candidate threshold, but suffice it to say the objectives advanced do not justify a threshold required of any sort, let alone a 50 candidate threshold.” So there seems to be a small opening suggesting there might be some justification. Maybe the case wasn't argued strongly enough, I'm not sure--we have a couple of lawyers sitting here. In the Elections Act now, as you know, you must have 12 candidates to have the name of the party on the ballot. There's a bit of a precedent there, and that may or may not be a justification. I wonder if one of your legal counsel here could express an opinion on that.

The other thing I want to remind you of is that the court's not necessarily always right, and it may indeed not strike down another law if we were to say 12 or whatever--I'm not sure what the number should be. Maybe we should test it.

Mr. Jean-Pierre Kingsley: I think, in order to answer that, we will have to look at all the rights and responsibilities that flow to what is called a registered party under the statute. I think it will require a lot more thought than certainly I've been able to give to it, even though we have looked into it to some extent so far. We're not going to be able to answer that question for you today. It may be that 12 can somehow be sustained, but I cannot give you the reasons today. I don't know if any linkage can be drawn to what constitutes a political party in the House of Commons. I don't know where that number comes from either. I don't know if anybody does, and the court was--

º (1610)

The Chair: That's not in the Canada Elections Act though. In other words, it's not a legal thing, it's just a rule of the House, that's all.

Mr. Jean-Pierre Kingsley: That's right.

The Chair: I would remind colleagues that we do have Mr. Figueroa here. It would be very interesting to see what he has to say about some of this.

I assure you this is not to steer the discussion, but my understanding from the minister was that there is a strong impetus for us to move in some way here in the House following this decision, before the next election, but that he, the minister--and the one-year review is in--wants us to return to these more complex matters later. I only say that to you because it strikes me there's a pragmatic element to what we're doing, which is to cope with the present situation and later deal with it in some more sophisticated way.

I have Ted White.... Sorry, Lorne, have you finished?

Hon. Lorne Nystrom: I'm just wondering whether the lawyers want to add something to this.

I know, Mr. Chair, you're saying, how do we get the party status in the House of Commons? I may be the only one around this table who was here in the days when we set 12 as the number. It was just an arbitrary thing. I think it had something to do with the Bloc Québécois having nine seats at that particular time. I don't want to elaborate on that, but it was at that time that we said 12 brings official party status.

The Chair: Would anyone like to comment on Lorne's remarks or no? No?

I have Ted White, then Joe Jordan.

Mr. Ted White: Thank you, Mr. Chairman.

Actually, Lorne took away most of my next round of questioning by asking about all of the 12-candidate rule stuff. In fact, it's on my list also to ask Mr. Figueroa whether he's comfortable with this number one. We wouldn't be where we are today if the previous minister had accepted the number 12, but it was negotiated a couple of years ago with Mr. Figueroa and other small parties.

But here we are today with the number one, so I want to ask Mr. Kingsley, are you completely comfortable with accepting the number one--the courts have ruled, that's where we are today--and that democracy means one person can be a party? Are you quite willing to accept that at this point, or are you going to encourage us to try to find another number?

Mr. Jean-Pierre Kingsley: I'm capable of implementing that.

Mr. Ted White: I think I can read between the lines on that. Based on the experience we have been through with this court challenge, though, we have to recognize what the courts have done here and that it is important to make sure those affected by any change would agree to that change and not reopen this whole court case all over again.

So if we were to approach it on the basis of trying to change the number, where do you think we should go with that? Is the 12 that's being bandied around the sort of area you'd like, or do you really feel it should be 50?

Mr. Jean-Pierre Kingsley: I really think we're going to have to consider some test other than number of candidates, which is the indication I was giving to Mr. Nystrom in my previous answer. I really think we will have to look elsewhere. It may not be possible to come up with a minimum number of candidates that would pass muster with the Supreme Court, based even on the excerpt from the judgment that was read. Even 12 is problematic unless we can come up with a real reason why 12 is it.

Mr. Ted White: So for greater clarity, the number one or no number or any number would be okay if there were some other test used in conjunction with it. That's perhaps something we will have to work on in the longer term as we review the Elections Act again.

Mr. Jean-Pierre Kingsley: That would create greater certainty, and I would agree with that.

Mr. Ted White: I know Mr. Figueroa has been sitting here listening to this. Maybe he'll be able to give us some more input on that afterwards.

Thank you, Mr. Kingsley.

The Chair: Thank you, both.

Joe Jordan.

Hon. Joe Jordan (Leeds—Grenville, Lib.): Thank you, Mr. Chair.

Mr. Kingsley, to pick up on your point, it seems to me that clearly the Supreme Court didn't give us a lot of room on the number. We are facing a deadline, and this is certainly, in an ideal world, not how you would approach this and try to come to some solution on this. But my view is that if we can't get something, then we're going to be facing a vacuum that's worse than an interim solution before we launch a broader review.

I think one issue, on the definition of political party, is trying to move away from that quantifiable number of candidates to some other.... How do you differentiate between a legitimate political party in its infancy versus somebody who's trying to form a political party to gain through the issuance of tax receipts and whatever else? How do you differentiate between a political party and an interest group? I think the fielding and supporting of candidates is a reasonable attempt, and I'm not an expert on the language of these types of things.

You said that in the absence of this there were mechanisms to deregister and to police the system, for lack of a better term. The problem I have is that if it's not you, then it's probably the Minister of Revenue. I'm more comfortable with your policing this thing than having the Minister of Revenue initiate the deregulation of a party because of income tax problems or tax receipt problems. I think you're the lesser of two evils in terms of--

Some hon. members: Oh, oh!

º (1615)

Hon. Joe Jordan: Even though right now you may not feel 100% comfortable with this, I think that, taken in the context, this is an interim solution, because we have a deadline of this June, and if we don't get something in place, the vacuum is worse than this, and we do have an opportunity to revisit this issue in more detail. So I'm wondering if it's reasonable to think, given that this is the lay of the land, that in the short term your performing that role as described in this bill is probably better than leaving it up to, let's say, the Minister of Revenue, to whom it may fall by default.

Mr. Jean-Pierre Kingsley: Certainly, sir, I agree with you that a legislative solution--any of the three I've mentioned--is better than not doing anything, because I think there needs to be legislation to back up anything that is done.

As I have indicated before, I was consulted by the previous minister concerning the statute and I'm ready to play the role that is defined in the statute, or in the bill that is before you. I'm ready, and I know that I'm capable of doing it.

But I wanted to draw to your attention what I thought about that in terms of the situation if we do define a party in a particular way in the law, if we do define responsibilities for the Chief Electoral Officer. These are things that don't have a tendency to die once they're done. That's what I'm trying to say to you.

The Chair: Colleagues, is there anything else for Mr. Kingsley?

I'd like to say, first of all, that Jamie's advice on the 12-member rule is that it's not in the Canada Elections Act but it is in the Parliament of Canada Act. It's not a casual thing. I thought I should say that.

Mr. Kingsley, I want to thank you. There are now three of us here who spoke in the debate on M-398. The others were Gurmant Grewal and Michel Guimond. Michel is normally here, but he's not here at the moment. We want to thank you for that, and for that part of your presentation. We really appreciate it. Loyola Hearn, Lorne Nystrom, and I took part in that debate. We thank you for that.

We thank you and your colleagues for being here. We would be grateful if we could have that translated document by tomorrow morning, whatever happens this afternoon.

Mr. Jean-Pierre Kingsley: It'll be here, sir.

Thank you all very much.

The Chair: Thank you very much, Diane and James.

Mr. Kingsley, could one of your staff stay for an hour or so? I'd be grateful. Thank you.

Colleagues, I want to now welcome the party leader of the Communist Party of Canada, Miguel Figueroa. I want to say that he's been before our committee before. For some of you who were not here at that time, it was at the time when we were discussing the role of the smaller parties, Miguel, wasn't it? It was at that time that the advisory committee to the Chief Electoral Officer was revived. I understand, Miguel, it's been called periodically since, and that you and your party, and the other smaller non-parliamentary parties, have had input into the electoral process since that time.

Mr. Miguel Figueroa (Party Leader, Communist Party of Canada): Yes. The Advisory Committee of Political Parties is now meeting on a regular basis and is very useful. It provides not only a convenient and useful transmission belt for Elections Canada, to make sure all parties know the rules and the changes and deal with problems as they arise, but also an opportunity for parties to red-flag certain aspects of the act and its implementation that are problematic. I think it's been very useful for all concerned.

º (1620)

The Chair: We were glad at that time to support these smaller parties, very much so, and now you've presented us with this conundrum. We're in your hands, and I understand you have a statement.

Mr. Miguel Figueroa: Mr. Chairman, members of the committee, on behalf of the central executive of our party, I'd like to thank the committee for providing us with an opportunity to express our views and concerns about Bill C-3.

We understand that some members wanted to proceed immediately to clause-by-clause debate without first receiving any witnesses, although we appreciate the desire of the government and of this committee to expedite consideration of this bill due to the deadlines imposed by the Supreme Court ruling of June 28 of last year and the politics of the moment, and although we as well, understandably, are anxious to see this unconstitutional situation arising from the 50-candidate rule changed as quickly as possible. As members of the committee are aware, we have been fighting to strike this and other discriminatory undemocratic sections of the Elections Act for over 10 years now. However, in our opinion, it is wrong for this committee to proceed without providing an opportunity for all parties to express their views on the amendments. This is especially so with respect to newer and smaller political parties, those most immediately and directly affected by the proposed changes.

This is not standard, everyday legislation. This is legislation that amends the Canada Elections Act, one of the most fundamental laws of Canada. There is a certain irony that changes intended to make the electoral process more open and accessible, changes smaller parties in particular have long advocated, changes by the result of which these same smaller parties will be most affected, are being considered without soliciting their views and input. This is, in our view, a reflection of a certain arrogance of the larger established parties in this House, which in the main have tended to consider the democratic process as a private domain.

The introduction of Bill C-3 marks a moment of legal and parliamentary history in our country. Never before has a single court challenge resulted in legislative action not once, not twice, but on three separate occasions to amend a standing law. As you will recall, Bill C-2 in the year 2000 amended the Elections Act to, among other things, remove the unconstitutional and quite Draconian seizure of party assets for failure to field 50 candidates and provide for a full refund of candidates' deposits, both arising from the original Malloy decision. Bill C-9 in 2001 reduced the threshold from 50 to 12 candidates for the party identifier to appear on the ballot, arising from the Ontario Court of Appeal ruling. Now Bill C-3 is scrapping the 50-candidate rule altogether for party registration, arising from the judgment of the Supreme Court.

The Communist Party is proud of the part it's played in this history-making process, but it's not a development of our choosing. It came about in the first place through the reckless antidemocratic actions of the previous Mulroney government, and second, because of the stubborn refusal of the current government to do the right thing, to amend the legislation and to remove those restrictive and discriminatory aspects of the act after the Ontario Superior Court judgment of Anne Malloy declared those sections unconstitutional.

How much time and how many resources have been expended, including the time of this committee, on these matters? How many dollars of public funds have been wasted on this litigation? This committee, this House, and this government need to reflect on this matter carefully. Yet, after all that, the current government has introduced and passed legislation, in the form of Bill C-24, that directly contradicts the ruling of the Supreme Court in the Figueroa case by granting benefits to some parties while withholding them from other smaller ones, in the form of the 2% threshold to receive party financing, an action for which the government has yet to provide a single legitimate explanation or justification. As Karl Marx once observed, history repeats itself first as tragedy, then as farce. When our party appeared before this committee last year, we warned that this particularly odious and discriminatory aspect of Bill C-24 would be challenged and challenged successfully. On this occasion we'd like to inform the committee that our party, the Green Party of Canada, and the Marijuana Party have jointly agreed to launch a charter challenge to this 2% threshold and that other smaller parties are now considering and are likely to join in this challenge.

To turn to the specifics of Bill C-3, the Communist Party is satisfied that most of the provisions of the proposed act are consistent with the Supreme Court decision and with generally accepted precepts of democratic practice and process. However, we do have concerns about some specific aspects of the bill.

º (1625)

The first concerns the requirement for 250 members. As you know, the present requirement for party registration is 100 members. The bill proposes raising that minimum to 250 members. We oppose this increase and consider the current requirement sufficient to show a minimum level of membership support and involvement.

We would remind the committee that although this change seems quite inconsequential from the perspective of large established parties, this requirement, taken together with the proposal that it must be repeated every three years, could be quite onerous for new and especially smaller parties, which by definition lack the resources and the apparatus of the larger parties. We note with some alarm the suggestion by certain committee members that this requirement be further increased, no doubt with the intention of constructing a larger obstacle to the registration of political parties.

The committee would be well advised to take to heart the comments of Mr. Stephen Zaluski, senior counsel for legislation and health planning from the Privy Council Office, when he told this committee on February 24:

The thrust of the reasons of the court is clear that the more requirements you impose in terms of size, in terms of candidates, in terms of any range of criteria, the more you're pushing the envelope in charter terms. And so it's certainly true that there's no magic to 250 but the more you increase it, the more you're limiting your room to manoeuvre and setting yourself up for a more difficult charter defence when it comes.

Rest assured that if this committee attempts to use this provision or any other criterion or threshold with the express purpose of unfairly and arbitrarily restricting access to political participation in this country, it will face successful after successful legal challenge.

On clause 22 of this bill dealing with amendments to section 501 of the Canada Elections Act, we wish to express our serious concern about the penalty provisions for failure to comply with certain requirements under section 501, including the deregistration of the party and the liquidation of its party assets.

On September 27, 1993, our party was deregistered for failing to field 50 candidates in the general election that was held that year. During the subsequent six- to nine-month period, we were forced to liquidate all of our party assets and to turn over the balance to Revenue Canada. Subsequently, of course, the courts struck down the seizure of party assets provision, and now finally the 50-candidate rule itself.

The point here, however, is that based on our own near-death experience, we must stress to the committee that the deregistration and liquidation process is an extremely harsh penalty to impose on any party, regardless of size--but especially on a small party. It is an onerous sanction from which most parties would not recover.

It is an elemental principle of justice that the punishment must fit the crime. Certainly if an entity consciously and purposely gains registered party status with the sole or even primary intent of using that registration to engage in fraudulent activities at the expense of the public purse and the integrity of the democratic process, then such action deserves immediate deregistration and the liquidation of their assets. There's no dispute here.

However, the bill as it is presently proposed under proposed subsection 501(3) provides far too much latitude for interpretation by the Chief Electoral Officer to declare a party in non-compliance and to order its deregistration and the liquidation of its assets. Proposed paragraph 501(3)(j), for instance, states that one of the grounds shall be “providing electoral campaign return...that is incomplete”.

Not too long ago the press was full of reports of a somewhat incomplete reporting of the business dealings of a certain Montreal-based company with the federal government, yet throughout that entire controversy there was never any consideration of possible sanctions that should or could be applied against any of the principals involved in this affair. Our party--and we presume all registered political parties--makes a conscious effort to comply with all reporting responsibilities required under the act. However, we've made mistakes in the past and will no doubt make mistakes in the future as well, as will all other parties. Should federal parties be liable to face deregistration and the seizure of their assets for such violations?

º (1630)

We believe this is an extremely dangerous provision that could be subject to abuse at some future date. We would therefore recommend that this proposed section be redrafted to make it much more explicit that the application of the penalties of deregistration and the seizure of party assets would apply only in those cases where there is substantiation of fraudulent intent. There's a big hole in the bill, a big loophole, as it's presently worded.

My third point concerns the factors listed in clause 23 of the bill, dealing with proposed section 521.1 of the Canada Elections Act. And this, by the way, pertains to this whole question of the definition of a political party and how it's determined--the role and the purposes of a political party.

Our party is extremely concerned about this clause, specifically the amendment in proposed subsection 521.1(5) dealing with factors that a court may take into consideration in determining whether or not a party has “as one of its fundamental purposes participating in public affairs by endorsing one or more of its members as candidates”. We, along with the Chief Electoral Officer of Canada, consider this entire clause to be problematic, but we specifically object to proposed paragraph 521.1(5)(b), which directs the court to review and presumably pass judgment on the “political platform” and on the “policy statements”, etc., of parties. We're concerned about the vagueness of this reference, about the latitude it would give the courts in interpreting this application, and about the potential for abuse.

The annals of recent history are replete with examples of governments harassing, outlawing, and otherwise persecuting communist parties and other revolutionary organizations on the grounds that these organizations advocate the revolutionary transformation of society, and then interpolating that such advocacy is incompatible with the struggle for democratic change through the ballot box. Throughout our 83-year history in this country, our party has been so victimized by Canadian governments and courts on more than one occasion.

We therefore recommend that proposed paragraph 521.1(5)(b) be removed from the draft legislation. The other subsections provide more than sufficient grounds for a court to determine whether or not a party is complying with the fundamental purposes of a party as detailed under the act.

The Communist Party also strenuously objects to the reference contained in proposed paragraph 521.1(5)(c), which implies that one of the grounds for questioning a party and its fundamental purposes is “any of their public statements in support of another political party or a candidate of another political party”. This would constitute one of the indications of failure to comply with the party's “fundamental purposes” under the act.

How will the courts interpret that reference? Does this mean that political parties are proscribed from giving qualified endorsement or support to the candidate or candidates of another party or parties in a given election if that party itself is not contesting in a given riding? Would a party be jeopardizing its registered status were it to make such a public declaration of endorsement?

Throughout the entire history of elections in this country, political parties, not only our party, have from time to time given conditional support to other candidates and other parties in those ridings where the parties in question were not fielding candidates in a given byelection or a general election. They've done so not for reasons of self-interest but rather out of consideration for the best interests of the country as a whole and of the peoples of Canada as a whole--from the point of view of that party and its members--at a given political conjuncture or in a given circumstance.

We find it quite unimaginable that this committee, or the House as a whole, would invoke such a sanction on parties, as this would constitute a grave violation of elementary democratic theory and practice, not only in Canada but the world over. Yet this is precisely what proposed paragraph (c) directs the courts to consider as a ground for non-compliance with the fundamental purposes of a party.

We therefore strongly recommend that proposed paragraph 521.1(5)(c) be deleted from the draft legislation.

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Finally, there are concerns about the transitional provisions. According to the proposed act, the provisions would not come into force until some time after the proclamation, allowing time for Elections Canada to prepare for the implementation of these new changes.

While we appreciate the reasons for these provisions, we wish to convey our deep disappointment that these changes will likely not be implemented prior to the next federal election. This will effectively result in the 50-candidate rule, the constitutionality of which was initially challenged prior to the 1993 election, being in place for four consecutive general elections, a situation we consider deplorable and for which we hold the governing party in this House primarily responsible.

Thank you for your attention. I'm ready for questions now.

The Chair: Thank you very much. We do appreciate it.

Colleagues, we will have a translated version of Miguel's presentation as soon as we possibly can, and it will be circulated to all members.

Ted White.

Mr. Ted White: Thank you for the presentation, Mr. Figueroa.

Possibly I'm going to be the only person at this table who actually congratulates you for what you've achieved.

Hon. Joe Jordan: Oh no, I would too.

Mr. Ted White: Oh good, Joe.

It's really a David and Goliath story, and I'm surprised your organization had enough money to take on the Government of Canada over such a long period of time. I hope you don't have to do it again, but I truly do congratulate you for getting the achievements in terms of the asset disposal, the deposit being refunded to candidates, and now this 50-candidate rule. You deserve congratulations even if not everyone agrees with you.

Now, you've raised some serious concerns with the bill, but I'd first like to ask you a couple of questions that I've pre-prepared.

Are you satisfied with the ruling of the Supreme Court that one person can constitute a party? Are you comfortable with that? You've heard some suggestion here today that the government may look at trying to find another number, perhaps in conjunction with some other test. Is there a number higher than one that you would still feel comfortable with, where the Communist Party of Canada wouldn't want to open the whole court scenario all over again?

Mr. Miguel Figueroa: Well, Mr. White, I read the blues from your meeting of February 24 where the honourable minister made reference to returning to this question in a broader context, and so on. It was not explicit, at least from my reading of the minister's comments, that there was a suggestion that the government itself wants to return to the question of the number of candidates, although certainly members of the committee have referred to that question.

But in answer to the matter you're raising, we in fact argued in the court of first instance and right up to the Supreme Court that we considered that the candidacy of even one candidate would be sufficient. I don't want to make points at anybody else's expense here, but the former leader of the New Democratic Party, Ed Broadbent, when this matter first arose in the House at the time the Canada Elections Act was introduced, made the point on the floor of the House of Commons that insofar as his party was concerned, one candidate would be sufficient.

You might not remember that, Lorne, but go and check the Hansard.

Justice Malloy ruled that two was the only number that would be logical. In her ruling, she stated she felt that one could be construed, in fact, as an independent candidate, but that having more than one would obviously indicate that there was some sort of collective platform and program, and so on and so forth, constituting a party. On that basis, she felt that the only number, besides one, that would be legitimate or acceptable in terms of section 3 of the charter was two.

The Supreme Court, in its ruling, did not weigh in on this question, but it's worth pointing out here that the reference that I think Mr. Nystrom made to a section of the ruling was particularly with respect to the party identifier and how this would impact on this larger ruling. When the case was argued in November 2002, I think it was, before the Supremes--excuse me, Supreme Court.... Actually, I'm told that in the legal community--I'm not a lawyer--they actually do refer to them as the Supremes, off record anyway.

º (1640)

Mr. Ted White: I'm sorry, Mr. Figueroa, you are using some of my time too.

Mr. Miguel Figueroa: I'm sorry.

The Chair: I'll give you an extra two minutes if you like.

Mr. Miguel Figueroa: So here we go, very quickly. When the case was argued in the court, in fact it was the now new UN High Commissioner for Human Rights who raised the question to the counsel for the Attorney General: why can't there be a P.E.I. party? Why can't the people of Prince Edward Island, feeling that none of the other federal parties represent their interests, have a party on that basis? There are four ridings in P.E.I., not 12.

Certainly our reading of the ruling is that the Supreme Court felt it was problematic to use this as any kind of...apart from one. I think that's the reason, in fact, upon reconsideration, the government's reading of the act is the same. That's why they have introduced one as the number of candidates. So we're certainly satisfied with it.

The Chair: Ted is right; we normally have a better time span here. But, Ted, you have plenty of time. The answers go into the member's time, that's all.

Mr. Ted White: It's not that we don't want to hear your answers, but we're trying to keep as focused as we can.

The Chair: No, no. We're enjoying what you're saying.

Mr. Ted White: From all that, I take it that you basically agree with the decision of the courts, although you might not necessarily challenge it if it said three or four, because it would not be worth all the effort.

Mr. Miguel Figueroa: Well, with respect to the proposal that's on the table, we agree with the proposal of one. If some other proposal comes forward, we'll have to look at it first before indicating how we will react to it.

Mr. Ted White: The only other comment I have to make is that I have the feeling this bill is going to pass pretty soon. I'm not sure it's going to wait until after the election. We all know an election is probably imminent and that there's a need to get something through the House. You heard the Chief Electoral Officer saying he will be in a vacuum if something doesn't happen here, so I have the feeling this bill is going to go through.

I also have a feeling that despite the fact that you've made some excellent suggestions here today, they're probably not going to get incorporated. So I can only give you a commitment that if I'm still here after the election you can talk to me again, and at subsequent deliberations you can be sure I'll bring those things back for you to this committee.

The Chair: Joe Jordan.

Hon. Joe Jordan: Thank you, Mr. Chair.

I echo my colleague's sentiments. I think any time somebody can take the government to task on issues of legality like this and win, it's a good thing, so I congratulate you for that.

But let's get back to the scenario we're facing here. In actual fact, if the election is called before June 27, then regardless of what we do on this, it doesn't make any difference, because we're in that window of one year. The justices, for whatever reason--and maybe you could shed some light on that--didn't come out with a ruling effective immediately; they gave the government a year.

My question would be, if the election is called before June 27, is that grounds for your party to then try to seek damages? I'm assuming you would then be forced back into the 50-candidate rule. That's one.

The second concerns whether or not there is any validity to the argument for initially filling the vacuum with something that's clearly less than perfect, keeping in mind that there are provisions in the bill for review after the first election in which it's used, but also that the minister has actually mandated this committee and referenced the Figueroa v. Canada decision in a review of the entire issue. I certainly don't think we have any trust in the bank, but I'm wondering if you would see any merit in filling the vacuum with the existing bill and then immediately beginning a review of the other issues, as opposed to getting bogged down in a process that may result in no bill and having a problem after June 27 with what the courts have asked us to do.

º (1645)

Mr. Miguel Figueroa: First of all, in answer to your first question about what would happen to a party like our party in such a circumstance, we would be forced to run 50 or more candidates. We are not going to jeopardize our registration. We fought like hell to get our registration back after we were deregistered, and we're not going to jeopardize that for even a small window. We haven't considered the question of filing damage charges on the basis of that, and I don't think we would.

Hon. Joe Jordan: I hope I didn't plant a seed for that.

Mr. Miguel Figueroa: I don't think we would. That's not the issue here. The issue is not a question of money. The issue is of justice delayed. This has certainly been a case of justice delayed. I'm not laying that on this committee, but a whole number of circumstances have drawn this process out far too long.

Now, what to do in the interim? Our view--and I sensed this from the intervention of Mr. Kingsley as well--would be to pass the bare minimum. Once laws are proclaimed and become a fact of life, they take on a life of their own, and it becomes much more difficult to then backstep.

What the Chief Electoral Officer is proposing is that you pass the basic minimum and you remove references to this whole question of political interpretations of the roles and definitions of a party. It is very problematic. There needs to be an awful lot of discussion and consideration about this. I think even though in the fine print it might be, you know, subsection 1(2) and this and that, and it might take a little bit of time for the committee to go through it, I think in the best interests not only of this legislation and dealing with this particular problem that exists, but also of solving this larger question in the future, it would be better to choose the minimum route, which would be simply to deal with the ruling of the court. The court said the 50-candidate threshold is too high; let's drop it down and be done with it, especially if the government and this committee plan to return to the question anyway within the next year or so, long before another federal election comes along. How much is going to be lost in the interim?

I think there's far too much in the this bill that's problematic. I think it would be better to cut it down to bare bones, pass it, and then you could have a full review. By the way, do that even in a larger context, not just in terms of this narrow question of the registration of political parties. This is something I know this committee has discussed in the past, broadening this whole question of doing a review of the democratic process as a whole.

The Chair: Joe, are you okay?

Hon. Joe Jordan: Well, I guess my only thought is that I'm not necessarily convinced nothing's lost. If we simply dropped to one candidate as a registered party without any thought to filters, we could end up having all kinds of new parties registered and undertaking all kinds of activities without checks and balances. I guess somewhere along that spectrum is where we need to get to.

Mr. Miguel Figueroa: If I might respond to that, first of all, it's not just a question of one candidate, as you are aware. Parties will have to establish that they have a membership base and the membership base supports the registration of a party. They will have to have an auditor.

By the way, for those of you from the large established parties--and all of you around this table are--let me assure you that because of the votes that the smaller parties have, not having access to refunds on elections expenses--millions of dollars that are distributed--not having any access under this new Bill C-24 to that cheque that came on January 1, etc., being a registered party in the present circumstances costs our party money. We run up thousands and thousands of dollars a year just on auditing fees, which are not subsidized by the government, which we have to pay out of our own pocket to maintain registration. We do it because we think it's important. The reality is that the Canadian people consider it to be important, that you're not really legitimate if you're not registered, if you're not official.

The fact is there is no big plum here. If there is a plum, it would become very obvious immediately to everybody in this room, to everybody in this country, that something fraudulent was being done. It would become immediately apparent. Frankly, I don't think there's a big danger there.

Secondly, this bill, even if it passes now, will probably not apply to this election. There will be four more years. So even if some group, for ulterior motives, decided to get registered and had political aspirations to form a genuine, bona fide political party, there would be more than enough time to revisit the question and establish proper guidelines before the next general election, except in the circumstances of a minority government, which--who knows?--could result.

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The Chair: Lorne Nystrom.

Hon. Lorne Nystrom: I also want to congratulate Miguel on what's happened in the court case. You've done a good job on it.

I have two questions. First of all, I just have a comment. It's interesting that we and the Communist Party are supporting the Supreme Court and the federal government. It's not very revolutionary. It's just a comment.

Some hon. members: Oh, oh!

Hon. Lorne Nystrom: It's in return for the Ed Broadbent comment.

But anyway, I wanted to ask you about your comment on Prince Edward Island.

Mr. Miguel Figueroa: That was a compliment, though, that I was giving your party. There's a big difference.

Hon. Lorne Nystrom: I was complimenting you as well.

Mr. Miguel Figueroa: Oh, I see.

Hon. Lorne Nystrom: You mentioned Prince Edward Island. There was a party in P.E.I. that wanted to be an official party, and they've been discriminated against. There are only 12 people running. You could have a Bloc Prince Edward Island independence party running four candidates in P.E.I., and another eight elsewhere in the country. There's no rule saying that they can't, so they still could.

My question to Miguel is, would 12 members be a real hardship for smaller parties? I'm not trying to be facetious here; I'm asking the question very seriously, because there has been some concern about the possibility of a very small group of individuals taking advantage of the law if you only have to run one person. I made reference to one of our colleagues in the House who has a certain narrow support base in this country made up of people who have very narrow views on some minorities. Or I guess any other people could take advantage of it and find 250 people to be members, register, have access to the funds, and get the tax credit for four years.

So would 12 be a hardship for most small parties? I do not want to create a hardship. It's certainly better than 50, obviously.

Mr. Miguel Figueroa: If one were predisposed to do that kind of mathematics, but I don't think that's the issue here.

With the exception of the argument, which I know has been raised in the committee deliberations to date, around a concern about independent candidates--or maybe somebody who has left the caucus and is sitting as an independent--transforming their particular political circumstance into that of a party so they can raise money through the full four years and issue tax receipts, as opposed to just during an election period, what we're talking about is an action by either a movement or a business, or a cloaked business, or something like that, to achieve registered status and then use that as a way of fundraising and increasing their funding and channelling those funds elsewhere.

The point was made by Elections Canada—and certainly by our solicitor, and by the Supreme Court itself in that judgment, and even in previous judgments—that the number of candidates is no guarantor against that. You could have an organization that could run 50 candidates; if you're talking about millions and millions of dollars, it is nothing for them to run 50 candidates. As a matter of fact, there have been some questions in the past.... It also goes to this question of separating out parties that are frivolous, as opposed to parties that are serious. You have the Natural Law Party, and so on and so forth, which ran 97 candidates in one election. So these kinds of barriers, I think, are not determinate.

Secondly, there are provisions already under the Income Tax Act and Canada Elections Act themselves that require scrutiny to ensure that this isn't going to happen.

So if the only concern is about independents who might transform themselves into parties, I think this is a marginal concern at best. Maybe there's an interest for political parties in the House of Commons wanting to police their members and make sure they don't become too independent and start breaking away and forming their own political parties. From the broader point of view of the question of democratic practice, I don't think that should be a big concern or a big threat.

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Hon. Lorne Nystrom: You're not thinking of the Sheila Copps party or a Mahoney party...?

My second question would be whether to do something about this now. There's a deadline on June 27. Maybe a compromise would be to pass this bill and have a sunset clause in it whereby after one year or two years it expires, which would force us to come back and make some permanent changes later on. Now we're in that rush or crunch. The Prime Minister may drop the writ within a few weeks, so something has to be done.

Would you support this bill if we had a sunset clause in it? Is there any wisdom in that? I have not talked about this with anybody else.

Mr. Miguel Figueroa: I don't know. The committee itself has got to decide what's in the best interest, dealing with the specifics. The real deadline is that imposed by the Supreme Court, June 27. My understanding of the proposed act and the direction from the Supreme Court is that if this bill is not passed through Parliament and proclaimed into law before June 27, the 50-candidate rule is going to apply anyway. There's not going to be a big hole if the writ is dropped next week, for instance. There's not going to be a crisis; the old rules will still obtain.

The Chair: Would it be a crisis if the election were on July 1, in your mind?

Mr. Miguel Figueroa: If nothing had been passed, yes. Certainly there would be a problem, and this is what Jean-Pierre Kingsley referred to.

So what's the answer to that? Is the answer to put in a sunset clause? Well, you could do that. You never know what other big questions will be in the hopper by that point with the nation's business as a whole, or even the business of this committee. You're dealing with other important issues, security and so forth, and you don't know what could come up. But our recommendation, and I take it as the indication from the Chief Electoral Officer as well, is that the solution is not necessarily to put an expiry date into the legislation, but rather just to simplify things and make sure you return to it. That would be our preference, that you should strip out all that isn't absolutely essential, and that includes the whole question of the definition and so on.

By the way, there's a strong desire among the smaller parties as well to have a larger discussion about these questions. It's not just the parties that are in the House currently; all the parties are interested in getting into this question and opening it up in a broader context.

The Chair: As you know, and I deliberately mentioned it in the beginning, in such a scenario, if we were not where we are now, this committee would invite the other officially recognized parties, as we've always done.

I have Judi Longfield, very briefly, colleagues, then I have something to say, and then I'm going to wrap it up.

Mrs. Judi Longfield: You expressed your support for Mr. Kingsley's recommendation that we delete the definition portion of the bill. I would be interested in your views on his recommendation that the bill simply be amended to grant to eligible parties that run between one and 49 candidates the three benefits stipulated by the Supreme Court: the rights to issue income tax receipts, to have their name on the ballot, and to receive a candidate surplus.

Mr. Miguel Figueroa: That is an option. When asked if he had a preference, he said his first option would be to strip out these sections. I don't want to put words in his mouth, but on previous occasions when he has appeared before this committee, and certainly in the Advisory Committee of Political Parties, Mr. Kingsley has made the point that there are serious problems with having different classes of registered parties, a class A party, a class B party, and so on . You would get into that problem--if you had one to 49, you would get these things; if 50 or more, you would get these.

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Mrs. Judi Longfield: That's not what he told us today. What he said today is that this is one of the things we could consider.

Mr. Miguel Figueroa: He said it was an option, yes.

Mrs. Judi Longfield: Could you live with it?

Mr. Miguel Figueroa: We go back to this question of whether we're talking about living with it for the next election or living with it on an ongoing basis. The ruling from the Supreme Court was not indicating its view on all questions. As a matter of fact, in our initial statement of claim, we made clear that we were not calling into question broadcasting time and other things associated with it. We were very concerned with some of the basic rights and benefits of registration, including the right to issue tax receipts to supporters. It is unfair that if you are Joe Citizen and support one party, you get a rebate, but if you support another party, you don't. That was problematic from our point of view, and the court agreed with us. On the other hand, the Supreme Court did not indicate that they felt those rights could be excluded. So it's kind of a grey area. The court did not rule on that question and said they wouldn't comment on that, because it wasn't before them, but it does create a circumstance where you have different categories or different classes of parties. We're not convinced that this is the best way to go.

The Chair: You've heard the congratulations of my colleagues on your tenacity and efficiency on this matter--

Mr. Miguel Figueroa: By the way, we don't have a lot of money, so in answer to this point that Ted raised, it's not because we have deep pockets, let me assure you.

The Chair: Miguel, we appreciate your being here. On matters of money, I always refer to Joe Jordan. You should see him outside.

We thank you for taking the time to be here today. You can see the members have taken very seriously what you've said. We will get a clear transcript of what's gone on and we'll look at it with great detail. Thank you very much.

Feel free to stay for a few moments. I'm hoping we're not going to be here for long.

Colleagues, because I still believe this matter of a potential vacuum is a serious matter, I would propose that on Thursday, in good faith--and by the way, I've talked to some of the parties on this--we will go through this clause by clause. I obviously can't commit to whatever way the vote is going to go on these various clauses, but in good faith, we will look at the clauses and sections that have been mentioned by Mr. Kingsley and Mr. Figueroa today.

Despite what some people said, everyone knew we were supposed to be doing clause-by-clause today because it was on the agenda. So from my point of view, that was public knowledge. It is on the agenda again for Thursday. We will be doing clause-by-clause.

I hope people will look at the testimony of today, that we will approach the clause-by-clause in a systematic way. Unlike the last time, when I said, “Should I call clauses 1 to 27 all at the same time?”, I will not be doing that. For my part, I am going to go through them one by one.

You understand what I'm saying. It's going to be serious, but I can't commit to the way it's going to go. Do you agree with that?

Judy.

Mrs. Judi Longfield: On a point of clarification, I didn't suggest that members of the committee weren't aware we were going to do clause-by-clause. My suggestion was that Mr. Kingsley didn't know--

The Chair: Mr. Kingsley was aware too, but I didn't want to pick him up on that because he was our guest.

Secondly, colleagues, you know that one of our constraints is this other business we have. I'm going to talk with our staff and I will try to have something on security, which we might do in a very short time, and something on the Standing Orders with respect to private members' business, which we also might be able to do in a short time. If not, of course, we'll have to postpone them. But I'll introduce those items. We'll look at them, and if it looks as though they're quite straightforward--we'll have circulated some material--we'll deal with them, and at least we'll be carrying on with our efforts on security and private members' business.

Are you comfortable with that?

The last thing I have to say is that I urge the whips to remind people in caucus tomorrow that at 5:30 tomorrow is our round table on committee review of appointments. I would urge all whips to announce that in caucus tomorrow. Ted has the note.

Colleagues, the meeting is adjourned until tomorrow at 5:30 for our round table, and until Thursday at the regular time on the matter before us.