HAFF Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 15, 2001

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[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I'll call the meeting to order. Colleagues, we do have a quorum sufficient for the purpose of hearing evidence. I'm hoping that within the next minute or two we'll have a slightly fuller representation of some of the opposition parties.

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In any event, I think we should get going and allow our witnesses, in this case the government House leader, to commence on our workplan for this morning. We're looking at Bill C-9, an Act to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act. We're commencing our consideration of that bill, referred to us from the House.

Welcome, Mr. Boudria. We'd be pleased to hear the government's position on Bill C-9. You have the floor.

Hon. Don Boudria (Leader of the Government in the House of Commons): Thank you, Mr. Chairman.

I have with me this morning Mr. Michael Peirce of the Privy Council Office, assisting me at the table. Also available to assist me later, should the need arise, are the following:

[Translation]

Isabelle Mondou, Roxanne Guérard, also from the Privy Council Office, and Stéphane Perrault from the Department of Justice.

Mr. Chairman, I am pleased to speak today on Bill C-9. This bill, as you know, proposes amendments to the Canada Elections Act. These amendments fall largely into two categories.

First, we need to change the Elections Act to comply with the Ontario Court of Appeal ruling in Figueroa concerning the identification of political parties on ballots.

Second, we want to take advantage of this opportunity to make a few technical corrections to make the Canada Elections Act and the Electoral Boundaries Readjustment Act clearer and therefore easier to implement.

[English]

Allow me to explain these two issues very briefly. First, I respond to a court decision rendered last August by the Ontario Court of Appeal in the Figueroa case. The court ruled that the requirement to nominate 50 candidates in order for the candidate's political affiliation to be included on the ballot was inconsistent with the charter.

[Translation]

The Court concluded that political affiliation can play a role in a voter's decision on who to vote for. For that reason, it is important to clearly identify political affiliation on ballots in order to uphold the right to vote more fully. It would therefore be important, in the Court's opinion, to know whether—to give an illustration—Mr. Smith is an independent candidate or a candidate for a party X, even if that party does not have 50 candidates in the election.

The Court recognized that the government was justified in taking the necessary steps to ensure that the electorate was not misled.

[English]

This is very important, because the court said:

The ballot is among the most cherished symbols of our democracy. It should not be a forum in which individual candidates, under the guise of listing party affiliation, are allowed to place information on the ballot that could hold the electoral process up to ridicule or advance some purely personal agenda.

In other words, if there's a place to put the party name on the ballot, it should be used for just that. Don Boudria calling himself the Don Boudria Party does not achieve that threshold. It must be a real party.

Why do we need a legislative requirement that a political party must nominate a number of candidates in order for their party affiliation to be on the ballot? Requesting a political party to comply with administrative requirements only would not be sufficient. It needs to be in the act. Voters could be misled if a ballot indicated a candidate was affiliated with a political party that didn't exist. We strongly believe that a party should only have its name on the ballot if it is a party in every sense of the word. The Court of Appeal has already spoken to that, and let me quote just a sentence. It says here in 117 of the Court of Appeal decision:

Finally, voters could also be misled if a ballot indicated a candidate was affiliated with a political party that was in fact not a political party in any real sense of the word. Political parties are understood to be organizations with members, a leader and a platform. Reference to a political affiliation on the ballot which is in reality no more than a name selected by an individual candidate is potentially misleading.

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So the court has spoken on that, and that's a court of appeal decision—and of course that was not appealed.

So we need a legislative requirement for a political party to nominate a minimum number of candidates. What is that magic number? I'm proposing that it be 12 candidates. Why choose the number 12? First, the number of 12 MPs is already found in various statutes of our parliamentary system. Twelve is the number of members required to obtain the status of identified, recognized political party in the House of Commons. It's in the Standing Orders of the House. It's in the Parliament of Canada Act, the Referendum Act, the Parliamentary Employment Standards Act, the Board of Internal Economy bylaws, and so on. So it's a number that's consistent.

Second, we examined other possibilities. The court said 50 is too high and, as I've also said, zero or one is too low. In other words, there must be a critical mass of candidates, and 12 is a number that's already used.

I know some people have identified 30 as a possible number. The Lortie Commission in 1991 used the number 15. Fifteen would probably work, but given that we already have a number very close to that, one even less stringent, that number of 12, which is already found in so many statutes and other rules I've just identified, if 15 works, 12 works even better. Therefore that's the number we used, one which, as I said, we can all relate to.

The one thing wrong with it, if I can refer to it that way, is it assumes that if you run 12 candidates, you would elect all of them in order to form a political party in the sense of those other rules on the floor of the House. But although that's somewhat unlikely, it's still technically possible. So why not use it?

We believe that 12 is consistent with the charter, since it has a clear rationale, which is what the courts referred to. The clear rationale element was deemed to be important for the courts. Perhaps 15 also has a rationale, but I don't think it's quite as clear, because of all the statutes I previously described.

The bill also takes advantage of this opportunity to make a number of other technical corrections to the Canada Elections Act.

[Translation]

For example, Mr. Chairman, you will note that a certain number of minor discrepancies between the English and French version have been corrected in the current legislation, that is, Bill C-2 from the last Parliament.

I would be pleased to answer any questions you have on these matters, as well.

[English]

So in conclusion, I'd ask members of this committee to support this bill and its amendments. They do not change, of course, the principles of the act. They respond merely to a court decision, except for a small number of technical amendments, and they make editing and other technical corrections.

As I've mentioned in the House, this would leave for further discussion the larger review of election issues and the possibility of more significant legislative change. If members are wondering why I am not waiting for that more comprehensive review to make these technical changes, it's because we're responding to a Supreme Court decision, and we were given a rather small window of time in which to do that and to obey the law. So we have little choice but to proceed with this smaller bill, if I can put it that way. But let there be no mistake that I'm fully open to discussions with colleagues on broader changes to the Canada Elections Act when the time comes.

The Chair: Thank you, Minister.

Colleagues, we'll now go to questioning. I'll point out that we have the Chief Electoral Officer scheduled to come in as a witness later, between 11:45 a.m. and twelve o'clock. So I'm going to suggest that we try to keep the rounds as tight as possible. I'm going to recognize Mr. White from the official opposition first, and in terms of the clock, I'm going to be looking at about seven minutes in an attempt to get all of the parties recognized.

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Keep in mind that officials from the Privy Council Office and officials who assist Mr. Boudria will be around throughout this for technical questions, for charter questions, and the Chief Electoral Officer, of course, will follow. So not all questions have to get put or answered at this time, although the minister would love to take a shot at it.

Mr. White.

Mr. Ted White (North Vancouver, Canadian Alliance): Thank you, Mr. Chairman. I don't think I have a reputation for rambling on. I think maybe some others do down there.

It intrigues me, Mr. Minister, that you've decided now that 12 is a number for which there are all sorts of rational reasons to support it. There are almost a dozen acts that you quoted in saying that 12 is a logical number to put before us, yet when we had Bill C-2 coming through the House here and I negotiated the number 12 with all the small parties and they all agreed it was a rational number, you had every reason in the world not to do it. Now, we could have saved a tremendous amount of taxpayers' dollars by doing it at that time, so I would encourage you, as a side issue, to take another look at the third-party advertising, because I think we're going to be back here on that one too.

Anyway, getting back to the subject of this bill, I'm very pleased to see that we are adopting the number 12. I hope now that the other small parties, once we get them here as witnesses, feel comfortable with that number still, having had six months or so to think about it.

There are a couple of issues that come out of this new act or amendment that I have some questions about. The first is in connection with proposed section 18.1, which the minister will remember was an issue we debated right up till the eleventh hour on this bill, and that's the ability for the Chief Electoral Officer to experiment with electronic voting. I noticed the addition of the requirement that the Senate would have to consider as well any proposal coming from the Chief Electoral Officer. I'm really at a loss to understand why the Senate should be involved at all. They're not even elected. Why would they have the slightest bit of...why would we even involve them at all in discussions about elections for the House of Commons? That's my first question.

In looking through the amendments, I also notice that whilst it appears the small parties will now have the ability to put their names on the ballot, it doesn't appear they'll have access to the voters' lists, as normal parties would; it doesn't appear they'll have the ability to issue tax receipts; and it doesn't appear they'll have access to any broadcasting time. All of the appearance is that as a minister you've basically complied with the barest minimum the court ordered, without really allowing the small parties to act like parties in terms of the electoral process. Perhaps you could comment on that.

Thank you.

Mr. Don Boudria: Perhaps I can start, Mr. White, by saying that I should have acknowledged that when I used all the rationales for the number 12, I should have identified that he had in fact also suggested the number himself. I apologize for not having done so, because certainly he did.

Mr. Ted White: Well, I thank you.

Mr. Don Boudria: I don't agree with Mr. White, though, when he says this would have saved taxpayers' dollars. Of course, both the Molloy decision and the appeal had to do with not only that but a whole bunch of other things at the same time. The court of appeal ruled with the government on some of the other broader issues, so I submit that it's not true to say this would have saved any amount of money at all.

If I can answer the second point in relation to the Senate, when we refer to parliamentary committees in any statute, it's always both Houses that are in there. It's actually a glitch.

As you know, that particular clause was inserted at the last minute. I think it was done actually by one of the opposition members—perhaps yourself, Mr. White—and I supported your amendment, as you know. All our colleagues who sit on the committee did, and we then did so in the House, too. I'm pleased, of course, that the amendment is there.

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But that still doesn't excuse the fact that we do have two Houses of Parliament. Whenever you have reference to a parliamentary committee, it's always both Houses, and whenever we send a bill over there with just the House, it comes back with the Senate added.

We can have a constitutional discussion as to how the Senate should be composed or how people arrive there, but that's a subject for another time.

On the third point you raised, would you mind repeating it?

Mr. Ted White: Small parties are still not really going to have all the privileges of a larger one.

Mr. Don Boudria: Sure, the court ruled on that. The court of appeal has spoken on exactly that issue, because it was a two-part decision.

First, once a party reaches a certain critical mass, it qualifies for such things as the issuance of tax receipts—the subsidy, if I can call it that, for both the candidates, the political parties, and so on. But that issue was ruled on differently by the court from the issue about name recognition on the ballot. The court of appeal ruled it was quite reasonable to leave that 50-candidate limit generally for all provisions. The court said, however, that even though it is reasonable, it is not reasonable that the ballot identifier use the same 50-candidate threshold.

Then the court went on to say what I said a while ago: that being said, the number of zero or one or something like that—which Justice Molloy used—was not right, because you can't use the identifier on the ballot simply to repeat your name or to pretend you have a political party when you don't. Just to repeat what was said here, and I quote again from the court of appeal:

Finally, voters could also be misled if a ballot indicated a candidate was affiliated with a political party that was in fact not a political party in any real sense of the word. Political parties are understood to be organizations with members, a leader and a platform. Reference to a political affiliation on the ballot which is in reality no more than a name selected by an individual candidate is potentially misleading.

So that's why this is done that way. It's certainly quite intentional. The court ruled two different ways on the two different issues.

Mr. Ted White: I fully understand the court ruling. I just think, especially with the logic that's being used here this morning to suddenly support the number 12 as appropriate, the spirit of fairness would have dictated that if it's good enough to have the name on the ballot as a party, then that group should also be entitled to all of the other privileges of parties, should be able to issue tax receipts to their members for the donations they receive, and should to be able to act like a party in terms of access to the voters' list. With all due respect, I think that would be an oversight.

Mr. Don Boudria: Well, we'll have to disagree on that one—and I'm not the only one who does. The court, in its ruling, certainly saw the two issues as being drastically different. It said 50 was the appropriate limit—“totally supportable”, and all those other words they used—except for the identifier.

So it isn't as though the court said zero or one or two or a small number should be the right amount for everything; it was the reverse of that. They said it upheld the law except for the identifier. The parallel you're drawing is that because the identifier uses a lower threshold, it means the rest of the court's decision was wrong. With respect, I don't think it was. Anyway, that decision wasn't even appealed. Even the party that lost did not appeal that particular provision.

The Chair: Thank you, Mr. White. I commend you for indeed sticking to the timeframe. You're most courteous.

Now I'll recognize a subsequent.... I had an indication from Mr. Bergeron, and then I'll go to Ms. Parrish, who has also already indicated.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Mr. Chairman, I would first like to make a comment and then ask a short question.

My comment deals with the very nature of the bill. It seems to me that we proceeded too quickly when we considered Bill C-2. We suspected as much at the time, and events have proven us right. It seems to me that if we rushed through that bill, it was because the government wanted to pass a new elections act quickly because an election was in the offing, and that was in fact what happened last fall.

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Did we proceed too quickly? I believe that the very fact that we are again looking at the number of candidates required to be able to indicate the name of the political party is proof that we did. I think that Mr. White has clearly indicated that many witnesses came before this committee to say that 50 was too high a number. Some said that 12 might be acceptable, others mentioned 2. Perhaps 2 candidates is too few, but, as Mr. White pointed out, you have given a number of arguments refuting the idea that 12 would be an acceptable number and that 50 would be even better.

Another indication that we were too hasty on Bill C-2 is that the bill contains a number of language errors, incorrect references and omissions in some provisions. If the minister had allowed a more thoughtful, normal debate, we might have avoided these types of errors and reached a greater consensus. I find it rather strange that the cornerstone of a country's democratic process should be passed basically on government support alone. I do not think that there is any precedent for this, where three of the political parties in the House of Commons did not even have an opportunity to speak at third reading on the bill to amend the Canada Elections Act, which, as I was saying, is the cornerstone of our democratic system.

I repeat that the fact that we needed to consider this bill today proves that we proceeded too quickly the last time, that we did not take the time to do our work properly. If we have to amend the bill now it is solely as a result of the then government's timetable or partisan agenda.

That was my comment. Now here is my question. Would the minister be prepared to make certain amendments to the bill—which I would call an omnibus bill because it is correcting a number of provisions in the bill—so that we could reach agreement on points where there was no agreement last time around for a host of reasons that I will not reiterate? For example, there is the issue of how returning officers are appointed. Would the government be prepared to consider a certain number of changes in this bill that could accommodate everyone this time?

Mr. Don Boudria: I can answer that question. To begin with, I mentioned at the beginning of my presentation—perhaps the members had not yet arrived when I said it—that it is important to keep in mind that, contrary to what has been said, the appeal in the Figueroa case has nothing to do with Bill C-2. The case was before the courts years before Bill C-2 was introduced. I believe that it was in 1995 that Mr. Figueroa went to court the first time. I was not even a minister at that time, when the case went to court. So that has nothing to do with Bill C-2. No one should claim that it has.

Let us now talk about the errors. We need to correct maybe a dozen translation errors in a 250-page bill. I think that a 250- page bill that contains only a handful of small technical errors to be corrected could be called a masterpiece. I am not talking about my work, but rather the work of those in the Department of Justice and Privy Council who drafted the bill. There are very few problems in this bill, as it has proven in the test of the recent general election, which is the very expression of democracy.

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Now, as I also mentioned in my presentation, as regards including in this bill substantive issues that go beyond technical corrections, I would like all these points to be put on the table when we do a comprehensive revision of the Elections Act in the wake of the Chief Electoral Officer's report and then the report of this parliamentary committee.

We will not include a last-minute quicky today. I am not in favour of that. But I can say that, later, I would like everyone, from all sides of the House, to make their suggestions to improve the Elections Act in the longer term. I am very open to listening to all suggestions. That does not mean that I will agree with every suggestion that is made, but I agree to listen to the suggestions that will be made at that time.

I have one last comment to make on the speed with which Bill C-2 was introduced in the last Parliament. Bill C-2 is based to a very large extent on the Lortie Commission Report of 1991, which led in 1997 to a report from the Chief Electoral Officer, to a report by this committee in 1998 and to the introduction of the bill in 1999. I am not sure that we were acting hastily if it took us nine years to get there.

Mr. Stéphane Bergeron: Mr. Chairman?

[English]

The Chair: We're just coming very close to the end of your time.

[Translation]

Mr. Stéphane Bergeron: It will be very quick. First of all, I simply want to bring to the attention of the minister and to the members of this committee that I did not refer to the Figueroa case in my comments. I was referring to comments and suggestions that were made here in the committee to reduce the number from 50 to 12; some people even suggested bringing it down to 2. Afterwards we had to make the change because the minister gave numerous arguments against reducing from 50 to 12 the number of candidates required in order to have the name of the political party indicated on the ballot.

I also want to point out that my comment was not in any way meant as a criticism of those no doubt very competent people in the Department of Justice or the Privy Council Office who drafted the bill. My comment was a political comment aimed at government members and the decision made to use a gag at various steps in the legislative process to speed up passage of the bill, when we could perhaps have worked on the bill longer and avoided that sort of thing.

As to whether the minister is prepared to listen to what we will have to say, I would simply say that is somewhat indicative of the government's attitude over the last while. The parliamentary system and Parliament seem to be a necessary evil for this government, which is willing to listen to what parliamentarians have to say but frequently does not take into consideration their comments. Minister, you will indeed have to listen to our suggestions. However, I would invite you this time, unlike what you did last time, despite what you said you would do when you introduced Bill C-2, to take our suggestions into account as far as possible and not act in a strictly partisan way, and to try to find a consensus, which was not the case when Bill C-2 was passed.

Mr. Don Boudria: Mr. Chairman, once again, I must disagree. I do not know whether the member was there last time, when we considered Bill C-2, if he was part of the group that studied it, but I accepted a number of the amendments that the opposition members proposed, including the one on accounting principles that was brought forward by the Bloc Québécois and the one that Mr. White suggested to correct a small technical problem. This was proposed by an opposition member. I also accepted Mr. Solomon's amendment, to the effect that, in the case of numbered companies, the name of a person should be included along with the name of the company. I think that I accepted 25 amendments. Moreover, I had asked the opposition members who made the suggestions to propose the amendments themselves so that their contribution could be recognized. I too remember something about this bill, and a number of amendments were accepted. That does not mean, however, that...

Mr. Stéphane Bergeron: Those were essentially technical amendments, Minister. The substantive amendments on electoral reform were all brushed aside by you.

Mr. Don Boudria: No.

[English]

The Chair: Thank you, Mr. Bergeron.

We'll go to Mrs. Parrish, and then to Mr. Nystrom and Mr. MacKay.

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Mrs. Carolyn Parrish (Mississauga Centre, Lib.): Thank you for coming today, Mr. Minister. I'm glad to hear you're open to a larger review of the bill.

I don't agree with everything Mr. Bergeron said, but I do agree that it was a very large piece of legislation and the only way you test it is to run an election. We all learned from that election that a couple of things should be looked at more closely, most particularly the idea of a full enumeration being tested in the Ontario election and tested in our election and found seriously wanting. So I'm glad to hear that you're willing to have a good look at that.

As far as electronic voting, I'm glad to see there's a fail-safe process in there before that gets implemented, because the failure rate for new Canadians in the municipal election this year was extremely high. People who didn't speak English, people who weren't comfortable, took one look at that electronic ballot and walked out of the place. I saw them doing it.

Mr. Don Boudria: It was the experience in our area too.

Mrs. Carolyn Parrish: Yes, it's a bad idea. It's not just because I'm against electronic voting in the House—I want to be on the record—I just think it—

Mr. Don Boudria: Keep me away from that one.

Mrs. Carolyn Parrish: Okay. I never miss an opportunity to bring it up, though.

I'm wondering if—and I don't propose an amendment—you've looked at the concept of the 12 seats. You mentioned 12 parties. I can think of, for example, 12 Re/Max agents in my area each forking over $1,000 and going on the ballot as the Re/Max Party, which is great advertising for $1,000. You've got the 50 threshold. Could you also not change it so that the party would have to have had 12 seats in the previous election in the House? That takes into consideration the Tory party—which had a small disaster there for a while, but has recovered—because they would hit the 50 threshold so their name would go on the ballot. But if a party didn't have 12 seats in the previous election, then they're considered to be still a very fledgling party. If you're going to pick 12, I think.... I'm just wondering if your staff could look at that and see if that's a possibility. A bona fide party like the Tory party obviously will hit that 50 threshold; they'll run 50 candidates.

A voice: Maybe not next time.

Mrs. Carolyn Parrish: Yes, they will. As far as the 12-seat threshold, I'm wondering if you could rationalize that better by saying they had to have had 12 seats or at least 12 candidates in the previous election.

I'm concerned about this possibility. We had yogic flyers. Do you remember that phenomenon where—

Mr. Don Boudria: They're still there.

Mrs. Carolyn Parrish: Well, it was just a big advertising campaign. I don't think anybody—

Mr. Don Boudria: I had one of those as an opponent even in this election. Mind you, in the case of the Natural Law Party, as you know, we did provide an amendment between 1993 and 1997. Those who were here at the time will remember that we had an amendment. I believe it was an amendment to the Elections Act proposed by the then Reform Party that we put forward—it was a B.C. member who is no longer here, and I'm sorry if I forget his name. We amended the law to ensure that parties that didn't get a certain threshold of votes did not qualify for the subsidy. Perhaps Mr. White could assist me in remembering the name of the MP.

Mr. Ted White: It was Ian McClelland, actually.

Mr. Don Boudria: Was it?

Mr. Ted White: Yes, I believe it was Ian McClelland.

Mr. Don Boudria: Oh, sorry. Then it's an Alberta MP; I thought it was one of the B.C. people.

So we did that and.... By the way, speaking of that, it's the exact opposite of what was asked in the previous question by Mr. White, because we in fact tightened up who could get funding as opposed to loosening it, not that long ago, at the request of a member of the same party.

Now on 12 being the identifier.... What's important is the court decided that even if people don't meet the 50 threshold—which is the proper one otherwise, and that's what the court has said—you have to have a lower threshold simply for the purpose of identifying. That threshold must be lower than 50—50 was unconstitutional—and it must be greater than zero, they said, because it just can't identify one person and mislead people that there's a political party where there is not. So we know, therefore, that it's somewhere between greater than one or two and less than 50.

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Experts in the justice department have told us the number 30 is too high. Again, this is only for the purpose of an identifier, not for the purpose of who gets the subsidy and so on. Using the case of the Conservative Party—obviously they run more than 50 candidates. That's not really an issue. They qualify under the higher threshold that was only designed to accommodate, so the court said—whether I agree with it or not is maybe immaterial now, and obviously I disagreed because I asked that it be appealed, but anyway I lost—there must be a lower number. If 30 is too high and 2 is too low, what's a proper number? Lortie said 15 for the purpose of that identifier. We use 12 in the House of Commons. As 12 and 15 are so close, why not use the more generous of the two?

Mrs. Carolyn Parrish: I might add, if you have 12 high-powered real estate agents living in Mississauga and the surrounding areas and they want to call themselves the Re/Max super real estate agency, it costs them $1,000 each—which is the cheapest advertising they'll ever get—to be on ballots in 12 ridings. It's going to say “Sam Kafuzzel, super real estate agent”.

I don't see how one can accept that because it belittles the whole process. If they had no party registered in the previous election and this was just some brainstorm—now that I've given it to them, of course they'll do it—of a bunch of real estate agents, that's a pretty cheap type of advertising. I don't think your bill addresses that.

Mr. Don Boudria: It doesn't.

Mrs. Carolyn Parrish: Well, that's why I'm suggesting that you have to look at the fact that they may have had, or should have had, 12 seats in the previous election.

Mr. Don Boudria: Mr. Chairman, that does not respect the court's decision. I don't like it.

Mrs. Carolyn Parrish: I guess you can't tell the court it's an ass.

Mr. Don Boudria: No, I can't say that. I'm a minister.... I think we should all be respectful of the court, even if we don't agree with it from time to time. I think that's incumbent on all of us.

The point I'm making is we made many of these arguments that were quite similar before the court when the issue went to the court of appeal. When the initial Molloy decision came—saying that two people should be a political party—I said jokingly that two people could be a bedside chat, but it wasn't necessarily a political party, or a barroom conversation, for that matter.

Mrs. Carolyn Parrish: I have one further question, Mr. Minister.

The Chair: Unfortunately, we've outstripped by a country mile your ability to put another question.

Mrs. Carolyn Parrish: I hardly got to talk.

The Chair: Well, these meaty preambles that members like to present to the committee, albeit interesting, do take away from question time. I'm not going to take any more time away, so I'll go right to Mr. Nystrom, and then Mr. MacKay for seven minutes each.

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): A very short preamble. First of all, Mr. Minister, I support the bill. I wanted to ask you if you have any legal advice as to whether or not 12 would stand up in court. You say it should be less than 50 and more than one or two, according to the court. You do say 12 is arbitrary. I know Mr. Figueroa himself will not appeal this; he's made it clear he accepts 12. But maybe Ms. Parrish's Re/Max Party will appeal and say 12 is too high. Do you have any legal advice saying if somebody appeals and says it should be eight, that we're not into this thing again?

Mr. Don Boudria: The court said, as I said previously, that 50 is too high, and they also said it has to be a critical mass—the words I used in the record a while ago. It must be based on the words “reference to rationale”. In other words, you can't just pick a number that doesn't mean anything. Two numbers do mean something, 12 and 15, 15 being the one that was used by a royal commission, so certainly it's a threshold that one could argue is logical. The number 12 has even more references than does 15 because it's one that is used elsewhere—Board of Internal Economy bylaws, Parliamentary Employment and Staff Relations Act, Referendum Act, Parliament of Canada Act, and the Standing Orders of the House of Commons.

All of these things put together lead us to believe—and certainly those who are giving us legal counsel—that the number 12 is the one that would work best, recognizing that 15 could also work. But if 15 does work, this one works even better because it's less onerous.

Mr. Lorne Nystrom: So you've had legal assurances that this will probably stand up in court. Hypothetically, Mr. Minister—-

Mr. Don Boudria: Legal opinion—we cannot get legal assurance. Only judges can do that.

Mr. Lorne Nystrom: I meant legal opinion.

Mr. Don Boudria: Okay.

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Mr. Lorne Nystrom: For example, take our smallest province, Prince Edward Island. Suppose people there formed the Prince Edward Island Independence Party—there are four seats in Prince Edward Island—or whatever party—

An hon. member: The Potato Party.

Mr. Lorne Nystrom: The Potato Party. It's a province, and there's a certain legal argument about recognizing the equality of the provinces in the country in terms of the Constitution. There are also four senators from Prince Edward Island. There might be a case to be made before the courts that it's unreasonable to impose the expectation of fielding more than four candidates if you're fielding candidates from a party that represents interests specific to Prince Edward Island.

Again, I'm just wondering what the legal ramifications of this are. I'm not advocating it. I agree with your position, Mr. Minister, but I think we should look at the bill and examine all aspects of it to see whether or not we might be into this again.

Mr. Don Boudria: But if that is the case now, it's not a new condition. For instance, anyone could have said the same thing to challenge the Parliament of Canada Act, which does that already. Similarly, the Referendum Act, the Parliamentary Employment and Staff Relations Act, and so on are also wrong if one wants to argue that this is wrong. What we can do is base our position on that mass of evidence pertaining to these acts I've referred to. The fact that the court has indicated that there must be what they call a certain amount of organization—leaders, members, a platform.... We know that in order to achieve that you have to have, as I say, a certain mass of people. The purpose of the party is not at issue. It's not really the purpose of it—regrettably, perhaps—because of what has just been said by our distinguished colleague, Mrs. Parrish. But there must be a rationale for it, according to the court. That's what they said. There have to be fewer than 50, and it must be a critical mass.

Mr. Lorne Nystrom: Yes. But it could be a mass party representing the whole province, representing the farmers of Prince Edward Island, for example. One could argue in court that this is a critical mass. It represents people in the whole province and in every riding in the province for a specific purpose.

Mr. Don Boudria: Of course, one can bring any action one wants before the courts. Nothing will ever prevent that, and nothing ever should, for that matter, because of course that's our right. But just the same, having said that, I would say that the purpose of the political party is not at issue here. If someone says the purpose of it is only to represent Prince Edward Island, I don't believe that would stand up before the court. The courts have already said that the purpose of the party is not what is of interest.

Finally, when all is said and done, it's a question of balance. On balance, what's the appropriate thing to do?

Mr. Lorne Nystrom: I'm just asking—

Mr. Don Boudria: Zero or one is not 50. It has been thrown out by the courts, even though some of us thought it was the right number—many people did, actually.

Mr. Lorne Nystrom: I guess my last question would be—

Mr. Don Boudria: And of course all of this only has to do with the party identifier. Remember, this does not confer party status in terms of the subsidy or anything else. It's only the identifier on the ballot that applies here, not even the identifier elsewhere.

Mr. Lorne Nystrom: I have a question similar to the one asked by Mr. White. Reference is made to the Senate and parliamentary tradition and procedure in this bill, as you have already said.

Mr. Don Boudria: Yes.

Mr. Lorne Nystrom: I wonder if you might not agree with me that it is rather ironic to make a reference to the Senate when we're dealing with elections, and the institution is not elected. Isn't there a certain amount of irony in that? It's more of a philosophical question, I suppose.

Mr. Don Boudria: Well, it is certainly a philosophical question. There are many laws that...most laws, actually, that I can think of. Virtually every reference to committees in statutes refers to a committee of both Houses. When I say most laws give a parallel role, there are a small number of differences. Obviously one of them is in the Constitution, which refers to the suspense of veto power for one chamber while that doesn't exist for the other, and so on.

Mr. Lorne Nystrom: Yes, you're referring to the suspense of veto for the Senate but not for the House.

Mr. Don Boudria: That's correct. So there are a few exceptions of that nature. Otherwise, we have to recognize that constitutionally they're both Houses of the same parliament. For that matter, the proclamation of the legislation is made by the Governor General, who's not elected either. That's another component of parliament. There are not two components but three: the crown, the House, and the Senate.

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Mr. Lorne Nystrom: But you'd also agree that constitutionally the Senate could have a suspensive veto in terms of any bill dealing with elections, as they do on constitutional change, while the House of Commons would have the final say. There's no constitutional reason why the Senate should have a veto on election procedures when they're not elected themselves.

Mr. Don Boudria: Mr. Chairman, while we may like it or dislike it, the reality right now consists of Bill C-2 from the last parliament. The Senate could have said, no, we're not passing it. Maybe you would argue that the Constitution should be changed—

Mr. Lorne Nystrom: That's why I'm raising it.

Mr. Don Boudria: —to do that, and that's an interesting debate, but probably not one for today. That's not a condition created by the bill we have today, nor was it a condition created by Bill C-2. It's a condition that has existed since Confederation—not one I had anything to do with, nor, of course, did the honourable member.

Mr. Lorne Nystrom: But we could use the amending formula as a precedent and then apply it in this case.

Mr. Don Boudria: Yes, but this is not a constitutional change, and we can't do it that way. This is simply an error in drafting that must be corrected, and so long as there are two chambers to our parliament, it's only appropriate that both Houses be considered when there is a parliamentary review of any legislation.

Mr. Lorne Nystrom: Just quickly, when can you expect your next election bill in terms of changes to the voters' list—

Mr. Don Boudria: That will depend, in some measure, on this committee. What I'd like to see is that as soon as the Chief Electoral Officer has finished his recommendations...and he needs some time to do that. He has to go through the election process and figure out where he thinks improvements are necessary. I hope this committee provides equally constructive criticism in its report. Based on that, officials will, just as they have done so well in the past, assist in the drafting so we can get a bill here to correct whatever needs to be corrected as soon as possible. It would be nice if we could have it by a year or so from now.

The Chair: Thank you, Mr. Nystrom.

We'll wrap up with Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair, and welcome, Minister.

I must begin by saying that it appears that last parliament's Bill C-2 was quite shoddily drafted, when one looks at the number of amendments, be they technical in nature or not. The bill was also clearly rushed through, which might account for some of the errors. It might more appropriately have been called the pre-election rush bill rather than the Canada elections bill.

There's clearly a case, as demonstrated by the changes here, for arguing that the bill was put through rather quickly. I would also suggest that we dodged a major bullet in some ways in section 441, which expands upon the calculation formula candidates must use when making a declaration as to how they've been spending and which has now been expanded quite substantially.

You will note, Minister, that it made no allowance for by-elections. You will certainly recall that we had two by-elections this fall in which we could have been plunged into the abyss, so to speak, and that is corrected.

I should put on record that I support this legislation to make these amendments, but it demonstrates that something hadn't been contemplated. It is a fairly major omission, I think you would have to agree, not to contemplate a by-election in an elections act.

Mr. Don Boudria: I don't think it's the fact that by-elections were not contemplated—

Mr. Peter MacKay: Well, not covered. Unless I'm missing something, in the old Bill C-2 there's no reference to by-elections in that section—and now there is.

Mr. Don Boudria: That's a reference to the instrument required for triggering a by-election. Of course, that is a drafting error and Bill C-9 seeks to correct it, and I'd be the first to recognize that.

That being said, though, I draw to colleagues' attention the fact that last Parliament's Bill C-2 was the largest reform of the Elections Act in something like 50 years. That a 250-page bill had but the small number of amendments it did is, I think, testimony to what I would qualify as the good quality of the drafting.

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Finally, in reference to that particular amendment, I sought consent of the House to include it at report stage because it was too late to include the report stage amendment and the consent was refused.

Mr. Peter MacKay: That's politics. That often happens, as you'd be more than aware.

Mr. Don Boudria: No, but that's not the same, and it was done prior to any time allocation having taken effect here. It's something I sought to get. So I have to remind members that sometimes these things can come back to haunt you.

Mr. Peter MacKay: So when the government doesn't get its way, it invokes time allocation. Is that what you're saying?

Mr. Don Boudria: No, it has nothing to do with that. It has to do with the fact that when I sought the consent of the House to include that report stage amendment to do precisely that, consent was refused.

Mr. Peter MacKay: But it was an error that you've acknowledged.

Mr. Don Boudria: It certainly was, one that I tried to fix on the floor of the House and presumably some people in error refused the consent required so I could put it in.

Mr. Peter MacKay: I don't recall. You don't have a crowd of people to go ooh and aah when you say that. I do note that with respect to the entrance of this bill there wasn't any kind of a press release or a briefing given to the media beforehand on this particular issue. In fact, there wasn't a release at all, as I understand it, on this bill.

Mr. Don Boudria: They gave a briefing to all political parties in the House of Commons. I announced it at the House leaders' meeting.

Mr. Peter MacKay: The press releases that normally accompany these, I understand.

Mr. Don Boudria: Yes, I have it here. That was done. As I say, a full briefing was given to each party caucus that asked for it. I certainly remember it being done. I'll try to get a copy for the member and provide it to him.

The Chair: Mr. Minister, the chair has a copy.

Mr. Peter MacKay: The last question I have is with respect to the blackout period, sections 335 and 334. I notice in the briefing booklet here that it refers to a harmonization, but it's still not harmonized. When I look at sections 323 and 335, one refers to “on polling day”. The other, 335, has been changed from 48 hours, or two days before, to the day before. So it's still not harmonized.

This word “harmonized” is not correct, nor in fact is the reference that it was changed for linguistic reasons. That's not the case. It's changed in a time period. It has gone from 48 to 24 hours. I want to know if there is a reason for that. I suspect it has to do with the ability of a party or a government to respond to third-party advertising on a Saturday before an election. It narrows the window. It gives them an extra day to respond. Is that the reason?

Mr. Don Boudria: I'll check that information out and seek to obtain the information for the committee.

As you know, when we did the bill the first time I sought to consult widely on the provision. I finally came with the decision in the end that the only blackout that would appear would be on election day.

Mr. Peter MacKay: I believe the Somerville case of Alberta in 1996 deals with it as well.

Mr. Don Boudria: That's correct—no, not Somerville, Thomson.

Mr. Peter MacKay: Thomson.

Mr. Don Boudria: Thomson. Somerville had to do with third parties and their ability to spend without any limits and to use funds from outside the country where candidates couldn't, and a whole bunch of other things. Anyway, of course, we won that one, although I understand they're going to try to bring it before the courts again. But I'm quite confident the provision we have is quite appropriate.

Mr. Peter MacKay: I may be able to ask the Chief Electoral Officer about this as well, but there is still an anomaly in the bill. There is no harmonization, which is the reason given.

Mr. Don Boudria: We'll check out the two clauses together with staff later. If there is a discrepancy, it's unintentional.

What I've sought to do in the end, and it wasn't my initial position, as you know...I thought there should be a blackout. The court said the 72-hour blackout in the case of Thomson was too long. I thought the last opinion should be given to the voters and the voters only. Anyway, I lost that one. Seventy-two hours was deemed to be too long.

I then went in, in the first draft of the bill last time, with 48 hours. It was half as long because a 24-hour ban didn't do very much, as you know. So I sought to put 48 hours in. There was considerable resistance particularly on the part of people in the media. I removed everything. The only thing I left was a ban on the publication of either polls or results on election day, for the same reason that you don't show results right now on election day.

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For instance, when the people finish voting in Mr. MacKay's province, I don't think the people of British Columbia want to have those results given out in the middle of the day. They've said many times before that they didn't think their votes were worth the same if somebody else's results had previously come in.

For that same reason, the exit polls on election day are, by virtue of this, not permitted. So there's only election day that's supposed to be covered by these provisions. Just as election results are not given out on election day, doing an exit poll would effectively achieve—particularly as these exit polls become more and more scientific—almost the same thing by stealth.

So that is what it is designed for.

Mr. Peter MacKay: I understand the reasoning. I'm just saying there's still an anomaly there.

Mr. Don Boudria: We'll check it out with the officials of PCO, who will remain available. If there's any inconsistency in that drafting we'll gladly provide the amendment that's necessary.

The Chair: Thank you, Mr. MacKay.

We've reached the end of the envelope of time that we had allowed for the minister. I understand from speaking to colleagues around the table, Mr. Minister, that we may have to ask you back before we complete consideration of the bill.

Mr. Don Boudria: I could come back this afternoon, if you like.

The Chair: The official opposition critic does have some questions he wanted to put. There are some matters arising from previous questions and there's Mr. MacKay's issue. So we'll reschedule at the earliest possible date. And we'll thank you for appearing today.

Mr. Don Boudria: Thank you.

The Chair: Now we'll break for about 90 seconds while we bring in the next set of witnesses.

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• 1206

The Chair: I call the meeting back to order.

After our 90-second break, colleagues, appearing on Bill C-9, an Act to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act, is Canada's Chief Electoral Officer, together with his very capable officials, Janice Vézina, the director of election financing, and Diane Davidson, director of legal services and registrar of political parties. So let us begin.

Mr. Kingsley, we usually like to hear whatever views you may have in connection with the legislation. You may not have any or you may have some. But I invite you to make some opening comments, and then we'll go to questioning.

Mr. Jean-Pierre Kingsley (Chief Electoral Officer of Canada): Thank you, Mr. Chairman. I do wish to take advantage of this opportunity to express some views on Bill C-9.

[Translation]

Thank you, Mr. Chairman, for giving me this opportunity to express my views on Bill C-9 and to respond to any questions that the committee members may have for me or my colleagues.

The first half of my speech will be in French and the second half in English, just for variety.

You have already mentioned that I am accompanied by Diane Davidson, Director of Legal Services, and Janice Vézina, Director of Election Financing.

First, Bill C-9 would amend the Canada Elections Act so that candidates other than those of registered parties may have the option of indicating their political affiliation on ballots. Second, the bill provides for various technical amendments that would correct certain details of the new Canada Elections Act.

These technical amendments do not raise any administrative concerns apart from the fact that they are exhaustive. With use, we have discovered other provisions that would warrant revision, since they create or may create undesired effects. For example, Bill C-9 does not resolve the incongruity of the situation in which eligible and suspended parties are considered exactly like third parties. This problem was raised by a number of stakeholders, including some members of the Advisory Committee of Registered Political Parties, ordinary citizens and candidates. I am also concerned about the questions that parties which are not represented in the House regularly raise about their participation in the electoral process. My suggestions on ways to improve the current system will be included in the report that I table in the fall.

The bill's provisions on the identification of political affiliation on ballots raise more questions.

On August 16, 2000, in the Figueroa decision, the Court of Appeal for Ontario upheld the principle of party registration, with its benefits confined to parties that support at least 50 candidates in a general election. The major benefits offered to registered parties are the following: the right to issue tax receipts, the right to reimbursement of a percentage of election expenses, the right to receive excess funds from candidates, the right to participate fully in the regime of allocation of time provided by broadcasters to registered parties during prime time at preferential rates for the transmission of political announcements, and the right to receive the final voters lists.

The Court of Appeal agreed that these benefits can reasonably be reserved for political parties that demonstrate a certain level of commitment, and that the condition of supporting 50 candidate is a reasonable yardstick for assessing this commitment. Some elements of the Court's decision that relate to the issue of the benefits reserved for parties that support at least 50 candidates are the subject of an application for leave to appeal to the Supreme Court of Canada. I thus have no intention of dwelling on this question.

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However, the Court of Appeal for Ontario considered the possibility of candidates having their political affiliation indicated on the ballot to be a separate issue. In this case, it found the provisions of the Canada Elections Act confining the right to indicate political affiliation on the ballot to candidates of registered parties to be of no force and effect.

This declaration of invalidity is founded on an extremely important conclusion: that limiting identification of political affiliation to registered parties infringed on the right to vote guaranteed by section 3 of the Canadian Charter of Rights and Freedoms, which includes the right of all electors to vote in full knowledge of the facts.

Therefore, in the Court's opinion, the right to vote implies the right to full and complete information necessary to vote in full knowledge of the facts, and the political affiliation of a candidate is information that is necessary to permit an informed vote. In fact, in the Court's view, political affiliation constitutes basic information for electors.

Referring to the Communist Party of Canada, the Court declared as follows, and I quote:

[English]

The CPC is a recognized political party within the common understanding of that concept. It has a leader, officers, a membership, a platform, and it chooses and supports candidates for election. The CPC is prepared to register and thereby to subject itself to the various provisions which regulate the identification of party affiliation on the ballot. By denying candidates of the CPC the right to show their party affiliation on the ballot, the legislation does nothing to avoid confusing or misleading voters. To the contrary, it denies them information which could assist in determining how to cast their ballot. Some, and history suggests only a few, will want to cast their ballot in favour of a candidate because he or she is endorsed by the CPC. Others, and history suggests the vast majority, would never vote for a candidate endorsed by the CPC. In either case, the voter will be assisted in making an informed choice if the candidate's affiliation with the CPC appears on the ballot.

That's paragraph 124 of the judgment.

It is interesting to note that the court made these comments knowing that in the general election of 1993, the Communist Party of Canada nominated only seven candidates, and in the general election of 1997, none at all. As the court points out, however, this organization had what was required to form a political party, namely a leader, officers, the necessary number of members, and a political platform.

While establishing the elector's right to information as a principle to be respected and followed, the court affirmed that Parliament should decide whether a limit on the right to indicate political affiliation on the ballot, based on the number of candidates, would be justified.

The court acknowledged that the Lortie Commission, like Professor Aucoin in his testimony in Figueroa, had suggested that a reference to political affiliation on the ballot implied that a party was running a slate of candidates and not just one candidate. The court stated, however, that it did not necessarily accept this point of view, expressing itself as follows—and again I quote:

Professor Aucoin...maintained...that if a political party ran only a single candidate, voters would be misled if that candidate's political affiliation was shown on the ballot. I have read and re-read the cross-examination and I confess that it is not apparent to me

—this is a judge speaking—

why Canadians would draw any conclusion as to the number of candidates being endorsed by a political party from the endorsement of a particular candidate on a particular ballot. To me, a reference to a party affiliation suggests that the candidate has the support of a political organization but says or implies nothing about the level of that organization's participation in the election.

And that is paragraph 127 of the judgment.

One can only conclude from this decision that the information on the ballot is for the benefit of the elector. According to the court, this information must be treated distinctly from the benefits granted to registered parties or candidates.

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In response to the Figueroa decision, Bill C-9 proposes that any political party that meets the conditions necessary to be an eligible party and supports at least 12 confirmed candidates in a general election could in the future be identified on ballots during that election. Thus, in a by-election, only parties that supported 12 candidates in the previous general election could appear on the ballot. Consequently, if a political party were created after a general election, its candidate or candidates could not indicate their political affiliation on the ballot.

[Translation]

As I mentioned at the beginning of my presentation, this bill does not raise any administrative issues for my office.

[English]

I hope these observations are of some help to you. My colleagues and I will be pleased to attempt to answer your questions, Mr. Chairman.

The Chair: Thank you, Mr. Kingsley.

Mr. Reid.

Mr. Scott Reid (Lanark—Carleton, Canadian Alliance): I have several questions, Mr. Kingsley, but with specific regard to the very end of the presentation, there was something I guess I missed in reading the bill, so I just want to confirm if I understand you correctly.

In a by-election, you're saying only parties that had 12 candidates in the previous election would be permitted to in fact put their name on the ballot. Would I then be correct in understanding that, for example, had Deborah Grey run in a by-election in early 1988 instead of early 1989—that is, prior to an election in which the Reform Party had any candidates—she would have been forbidden to run with a party banner beside her name, and that when they ran, the first candidates for the Bloc Québécois—I believe they ran before the Bloc Québécois had ever presented a dozen candidates—

A voice: That was in 1990.

Mr. Scott Reid: Would they in fact also have been forbidden from putting their party name on the ballot? Would that be correct?

Mr. Jean-Pierre Kingsley: In accordance with this bill?

Mr. Scott Reid: Yes.

Mr. Jean-Pierre Kingsley: Yes, they would have been prohibited.

Mr. Scott Reid: Is that in fact new, or is that something that is a prior, pre-existing situation?

Mr. Jean-Pierre Kingsley: It is not new in the sense that it's the way the law read. At that time, you had to have 50 candidates in the previous election to become a registered party, and only a registered party could have its name affiliated or put on the ballot.

Mr. Scott Reid: I'm sorry, I mean the prior situation. Currently, if this bill were not to be adopted or changed, or prior to the Figueroa decision, would that in fact also...? I'm asking if the law is changing the status quo.

Mr. Jean-Pierre Kingsley: I'm sorry, I'm not quite getting the drift. As you could tell, I got another drift from your question and I was preparing the answer to that. If I could understand the question better, I would appreciate that.

Mr. Scott Reid: I was raising the historical example. Of course, you're quite right that under the law as it existed both in 1989 and 1990, the names were not permitted in those by-elections. But I'm thinking here that there was a status quo as of the time at which Bill C-2 came into effect, before the Figueroa decision had been rendered. I'm just wondering if, at that point, with the status quo as it stood, that would have permitted a new Bloc Québécois or a new Reform Party to in fact have put its name next to a candidate running in a by-election.

Mr. Jean-Pierre Kingsley: No, it would not.

Mr. Scott Reid: It would not. So this actually is just a continuation of that status quo, then.

Mr. Jean-Pierre Kingsley: It is, which is what I'm drawing to your particular attention.

Mr. Scott Reid: Okay.

One consequence of this legislation is that two tiers of parties seem to be created. There is what's called a political party in the bill, with 12 candidates or more, and then a registered political party with 50 candidates or more. I'm wondering whether that is an irregular or unusual practice, looking at the other jurisdictions—the provinces of Canada, and other democracies that we would look to for some insight, like the states of Australia and other jurisdictions that you look at. Is that in fact a unique practice, or is it one that is practised elsewhere, to your knowledge?

Mr. Jean-Pierre Kingsley: It depends on what is the test of admissibility as a registered party. In some jurisdictions, if it's the number of signatures—let's say 10,000 signatures are required before you get registered party status—then you don't have to wait until the next election. When the test is something else, then the party that has made the request is something else than a registered party until it comes to the point where it can cross that threshold.

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I would submit that we're not the only ones that have the number of candidates as the test, but as I have indicated before, that is a test that could be changed in the future. It could be the number of signatures, and that would trigger more automatically registration as a registered party as opposed to an eligible party.

What I pointed out in my remarks, by the way, is that we in effect now have a regime—and I'll be coming back to that in the fall—that has three things that can happen: you can be a registered party; you can be an eligible party; but also, if you haven't fielded the right number of candidates to maintain your status, at the present time under the law you become a third party. I'll be making proposals to Parliament to modify that in my report in the fall.

Mr. Scott Reid: That's the situation the Christian Heritage Party is in currently. Is that correct?

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

Mr. Scott Reid: But regarding the use of a petition with a certain number of signatures on it as a way of allowing a party to gain registered status, and therefore to contest either an election or a by-election with its name on the ballot beside its candidates, in your view, looking at the situation over the past 10 or 15 years with the rise of the Reform Party and the Bloc Québécois, does it strike you that it could have worked effectively in Canada as an alternative to this particular mechanism? Could it have worked in a manner that would not have caused any abuses such as those the minister or Mrs. Parrish expressed concern with, with regard to party names being used as a way of advertising? She cited real estate firms, but that kind of thing.

Mr. Jean-Pierre Kingsley: I did not hear the testimony or the question that was asked, but certainly in respect of your question, I've stated before this committee previously that, in my view, one of two tests is required to indicate the seriousness before one can accept a party as being registered and benefit from all the things I've mentioned, including the right to issue tax credit receipts, which is a very important consideration because the public purse is directly involved.

It would be more difficult to administer the signatures, but certainly, in this day and age, it would not be an impossibility and would not take a long time; however, it would add to the administrative task of verification, no doubt about it. Right now, we verify 100 signatures to make sure they are genuine, so if it were to be 10,000 signatures, we would multiply the effort by that amount. But, to me, as I've indicated before, one or the other would suffice.

Mr. Scott Reid: All right, thank you very much.

Mr. Jean-Pierre Kingsley: Thank you.

The Chair: Thank you, Mr. Reid.

Mr. Guimond, you have about seven minutes.

[Translation]

Mr. Michel Guimond (Beauport—Montmorency—Côte-de- Beaupré—Île-d'Orléans, BQ): Thank you, Mr. Chairman.

Mr. Kingsley, in the first paragraph on page 4 of your document, you referred to the necessary conditions. In other words, you described to us what you see as the changes contained in Bill C-9 and you talked about the conditions necessary to be an eligible party. In its decision, the Court recognized that the Communist Party of Canada met the conditions necessary to be a political party, that is, it had a leader, officers, sufficient membership and a platform. For my information, could you indicate whether there are other conditions necessary to be an eligible party?

Let us take the hypothetical situation in Ms. Parrish's very pertinent question. In a city such as, for example, Montreal, Toronto or perhaps Vancouver, where there are 12 or more ridings, a group of real estate agents could decide to form a Re/Max advocacy party and present 12 candidates in a general election. And they would have their name on the ballot. Are there other conditions that those 12 real restate agents would have to meet besides having a leader, officers, the necessary number of members and a platform? Are there other conditions that I am not aware of or have not thought of? My other question is whether this possibility is a concern to you.

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We clearly need to comply with the Court decision, but 50 might make it a bit harder; 12 is easier.

Mr. Jean-Pierre Kingsley: To begin with, we need to keep in mind that 50 will continue to be the number unless the Supreme Court of Canada says otherwise, if it grants leave to appeal. For a party registration and the other benefits that I mentioned, it remains a separate issue.

With respect to 12 having been put forward in this government bill and the example that was given, if a real estate association decided to present a platform to the people and decided to do it in accordance with the party registration rules—submitting reports afterwards, appointing a party president, an auditor, an official agent in keeping with all the requirements under the Elections Act—and was prepared to comply with all these conditions, I do not see any major difficulties with it at first glance.

[English]

Ms. Parrish, and then Mr. White.

Mrs. Carolyn Parrish: First of all, Mr. Kingsley, I'm extremely impressed. I like people who can make things happen. When last you were here, I was complaining about an investigation that hadn't been undertaken, and now, lo and behold, an investigation is underway, and it's being done very competently. It was explained to me why it took four months for somebody to come out and get the information, but I must thank you. I'm optimistic, because the agent you sent out looked very sharp—a woman of course—and we may get to the bottom of this.

Following up on Mr. Guimond's question, I think you solved the problem in your comments about by-elections. We both picked our heads up quickly. In a by-election only parties that supported 12 candidates in a previous general election could appear on the ballot. Consequently, if a political party were created after a general election, the candidates could not indicate their political affiliation. Why could we not use that rule now for a general election, if you didn't have 12 candidates in the last election? You couldn't have the Re/Max real estate agents, who just want to get free advertising, or very cheap advertising. Why couldn't that, which applies to—

Mr. Scott Reid: [Inaudible—Editor]...number of parties. You couldn't contest this election because you didn't do it the last time around.

The Chair: Order.

Mrs. Carolyn Parrish: We're not talking about contesting an election; we're talking about having your party name appear on a ballot. If it works perfectly well for a by-election, why would it not work perfectly well in a general election? We'd still end up with that number 12, but you would be required to have had the 12 in the previous election for your party to appear on the ballot.

Mr. Jean-Pierre Kingsley: I think the court did indicate that it was leaving to Parliament the choice of that number, and I'm indicating what I think the number could be. But it's entirely up to Parliament to make that decision, and then to decide what it wishes to do.

Mrs. Carolyn Parrish: But what you've suggested here is—

Mr. Jean-Pierre Kingsley: Yes, I understand.

Mrs. Carolyn Parrish: Your interpretation is very good, as far as I'm concerned, for establishing the number 12, but to make it have some consistency and some legitimacy, adopt what you do in a by-election—if they had 12 in the last general election, the party name goes on the ballot. So if they had 12 in the last general election, the party name goes on the ballot this time. Or they meet the standard of 50—one or the other.

What you've said here I find a perfect solution to picking 12 again for a general election.

Mr. Jean-Pierre Kingsley: Right.

Mrs. Carolyn Parrish: So if we wanted to amend the bill to indicate this, that's what we would do.

Mr. Jean-Pierre Kingsley: That's what you would do, if that's what you wanted to do.

Mrs. Carolyn Parrish: That's what we want to do. Thank you.

The Chair: Thank you.

I'm going to, as chair, throw in a technical question. The answer may not be immediately forthcoming, but we can work on it while we go to other questions. The question is this. If immediately prior to a by-election a group of Canadians did create a party, did become a registered party and fulfilled all of the requirements of being a registered party, but were obviously not able to run 12 candidates, could the candidate in the one by-election record the name of his or her party?

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Mr. Jean-Pierre Kingsley: You cannot become a registered party without having crossed the threshold of a general election with 50 candidates.

The Chair: Thank you.

Now we'll go to Mr. MacKay, then Mr. Bergeron. I have your name, Mr. White.

Mr. Saada wanted to clarify something on that.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): A very quick—

The Chair: Just on that, if it's a clarification.

[Translation]

Mr. Jacques Saada: Mr. Kingsley, if memory serves, the Bloc Québécois officially presented its first candidate in August 1990. At that time, it had therefore not taken part in any election campaign.

Mr. Michel Guimond: He was an independent.

Mr. Jacques Saada: Yes, I understand, but he ran under the Bloc Québécois banner.

Mr. Michel Guimond: No, he was an independent.

Mr. Jacques Saada: He ran as an independent, then. That does not matter for the question that I am going to ask, which is as follows: if a party is created from members that have already been elected, would it be subject to the same constraints as those placed on people outside who form a new political party?

Mr. Jean-Pierre Kingsley: Yes, it would be subject to the same constraints because it would not have existed as a party before. The law applies to the party and not to a specific candidate. It is a party that exists afterwards. According to my interpretation of the legislation at this point, that is the answer. Did you understand?

Mr. Jacques Saada: I understand. I am thinking. I will come back later.

[English]

The Chair: Keep thinking.

We'll go to Mr. MacKay—

[Translation]

Mr. Jean-Pierre Kingsley: As a final clarification, I would say that there is one exception. If existing parties came together to form a single party, if there was a merger of two or more parties, which is permitted under the current legislation, the benefits of the parties would continue to exist for the new entity.

[English]

The Chair: Okay. To get the sequencing correct here, we'll go to Mr. MacKay, Mr. White, Mr. Bergeron, and then Mr. Nystrom.

I haven't recognized Mr. Nystrom at all on this, so maybe I should go to Mr. Nystrom before Mr. Bergeron. He says he has a short question.

Mr. MacKay, do you wish to defer to Mr. Nystrom at this time?

Mr. Peter MacKay: Absolutely. I will defer to Mr. Nystrom.

The Chair: All right. Go ahead.

Mr. Lorne Nystrom: Thank you. Just one short question.

What happens if a party changes name? The Reform became the Alliance, and there was a by-election where a guy named Stockwell Day ran. Does this change under this legislation at all? The Alliance Party had not contested the previous general election, of course. The Reform Party had contested the previous general election. So now you have a brand-new party called the Alliance Party, and there's a by-election. Can that new party use that new name? It's a new entity. It's a new institution. It's a new party. Can they use their name in a by-election?

Mr. Jean-Pierre Kingsley: You can use a new name with the existing party. It must be remembered that the party continued to exist; only it's name changed. How it was portrayed to the media is something else, and how the media portrayed it is something else.

Mr. Lorne Nystrom: So that doesn't change under this legislation.

The Chair: Good question and good answer.

Now we'll go to Mr. MacKay, followed by Mr. White, and then Mr. Bergeron.

Mr. Peter MacKay: Thank you, Mr. Chair. Mr. Kingsley, Ms. Vézina, Ms. Davidson, it's good to see you here. We appreciate the opportunity to go through some of these technical amendments.

I have a question that I posed to the minister with respect to—it appears to be somewhat of an anomaly, and I would refer you to sections 335 and 323 in Bill C-2. The current legislation, which was Bill C-2 and is now the operative legislation, talks of the blackout period, and it is more of a reverse phraseology that I see, where in section 323 it speaks of knowingly transmitting election advertising to the public before the close of all of the polling stations in the electoral district.

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Going back to the language in section 335, which speaks of broadcasting, it states in the Library of Parliament briefing that the reason for the amendment was to harmonize and reflect the blackout period, which arguably it does; however, it's speaking here of “ending at midnight on the day before”. So it's talking about the day before in one section, and in section 323, it speaks of before the close of the day “on polling day”.

I find that it may, in operation, actually have the effect that it comes up to midnight on the day before, and of course polling day then begins. But I would suggest that the language is very confusing.

Ms. Diane Davidson (Director, Legal Services and Registrar of Political Parties, Office of the Chief Electoral Officer): I think there has been a suggestion that there would be a review of this provision to take that into account.

Mr. Peter MacKay: The minister said he would look at this, but I wondered if there was a reason it was drafted in this way.

Ms. Diane Davidson: Section 323 deals with the blackout period. It's a completely different provision.

Mr. Peter MacKay: I realize it is, but the sections in the act are related, and one speaks of the day before polling day and the other speaks of the day of polling day. Was there a reason it was put in those terms?

I know the period of time has also changed. It has gone from two days, a 48-hour blackout, to a 24-hour blackout.

Ms. Diane Davidson: Yes.

Mr. Peter MacKay: Was there a reason for that? That doesn't seem to be addressed anywhere.

I can come up with my own reasons. Obviously if there is an eleventh-hour ad campaign, a party would like to have the opportunity to respond the day before the election. Can you enlighten us any further on this?

Ms. Diane Davidson: I'm sorry, I think I will have to review the provisions carefully and come back to you on this.

Mr. Peter Mackay: That is fine.

I have another quick question, or potentially a quick question.

As part of your review, Mr. Kingsley, presumably you will be looking at some of the problems that arose with this new permanent voting list. We received no end of complaints during the last federal election about the operation of this permanent voting list. There appeared to be countless omissions. It was very frustrating, as you can appreciate, for a voter, whether it be a new Canadian or someone who has voted in the previous 20 elections, to come to the polling station to exercise their democratic right and find that their name was excluded for some reason. I know there are ways to get around that, but I would suggest to you that it is a problem that occurred frequently across the country in the previous election.

The Chair: Mr. MacKay, we'll take your question as a representation. Mr. Kingsley appeared on supplementary estimates a short time ago, and that question was dealt with extensively, if not completely. We're dealing with Bill C-9 here, and—

Mr. Peter MacKay: With the greatest respect, Mr. Chair, my question was whether it was going to be considered in the review.

The Chair: I'll take it as a representation.

Go ahead, Mr. Kingsley, with a short answer to reassure Mr. MacKay.

Mr. Jean-Pierre Kingsley: The answer is definitely yes. As a matter of fact, I met yesterday with the New Democratic Party caucus, and I extend the offer to any caucus or any group of MPs, or any MP who wishes, to meet with us to make their representations. We have ideas that we're going to propose, bounce them back, and change the way things get done to satisfy you.

Mr. Peter MacKay: Terrific, thank you.

The Chair: Thank you, Mr. MacKay.

We'll go to Mr. White and Mr. Bergeron.

Mr. Ted White: Thank you, Mr. Chair. Not surprisingly, I'm coming at this from a completely opposite angle to Ms. Parrish.

In the spirit of the court ruling in the Figueroa case, the court ruled, as I stated consistently during the hearings on Bill C-2, that the information on the ballot is for the benefit of the voter, not the party. The court said the party name beside the candidate's name is for the voter to know that there's a connection between a group of people.

So, thinking about that, the aberration that you pointed out here in this bill is that if somebody goes into a by-election and cannot have the party name on the ballot, we're right back to exactly the same situation on which the Communist Party just won their case, which is the right of the voter to know that this person is a member of a party.

If an amendment were proposed, do you not feel that it would be consistent with the court ruling that a candidate should be allowed to put his or her name on the ballot in a by-election?

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That's my first question. In order to make this bill consistent with the court ruling, we should have that amendment.

Mr. Jean-Pierre Kingsley: Without pronouncing myself on the constitutionality, because that is the court's option, basing my opinion on the feeling of equity and basing my opinion on what I have heard from the parties not represented in the House of Commons but represented at my advisory committee—which you asked me to strike—my view is in agreement with yours, sir: one candidate at a by-election is all that is required.

Mr. Ted White: I would make the observation, then, that if we don't fix it, we're quite likely to be back into more court cases, because the same parties that successfully won in court will be back there to force us to do it later. So I take that under advisement. Thank you.

My second question has to do with the fact that there was a court-imposed deadline to get this change to the numbers into the House. If you had your wish, would you rather defer the content of this bill until later in the year, until your other report comes down? Would it be better to deal with everything together, rather than in a piecemeal fashion like this?

Mr. Jean-Pierre Kingsley: I think it is quite safe for the House and for Parliament to dispose of this bill as it wishes. What I have alluded to will not require a rewrite of parts of this bill. What I have alluded to are recommendations, as my previous report, Strengthening the Foundation, did. It will be a broad-based approach on everything in the statute, but it will not attempt to deal with any of the issues here. They are all dealt with here, and they will not be re-dealt with.

Mr. Ted White: My final question is, how big do you really think the risk is that Re/Max will put candidates on the ballot as a way of advertising?

Mr. Jean-Pierre Kingsley: I don't know, and I don't think it's pertinent to the discussion, sir.

Mr. Ted White: Okay, thank you.

The Chair: Thank you, Mr. White.

Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron: Thank you, Mr. Chairman.

Following up on Ms. Parrish's point, I want to say that I too have always been impressed by the quality and competence of your team. I said it last time as well.

I am also impressed by the fact that you showed dignity and responsibility in taking responsibility for all the teams across the country, even though many of those teams are not appointed by you in any way. I said this last time and I am saying it again: I find that you act in an admirable way in taking responsibility, for better or for worse, for their actions.

That said, I must say that, in contrast to Ms. Parrish, my representation concerning cases currently before the Commissioner have not been so spectacularly successful as it seems hers have been. Perhaps I will receive a call this week like she did.

That said, and all joking aside, I have two questions: One that follows up on the question asked by Mr. Guimond and one that has just come to mind from Mr. White's question.

I believe that Mr. White has just outlined a possibility that should be of concern to us. Representatives of political parties that are not allowed to indicate the political affiliation of a candidate during a by-election may decide to go to court to challenge this new provision.

You said that your report that you will be tabling next fall will contain a certain number of recommendations. You talked briefly earlier of the possibility that the creation of a political party could be based on something other than the requirement to have 12 candidates. You mentioned signatures. Can we expect that you will be providing us with some recommendations down the road to avoid a court challenge of this bill?

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You said that it was a good idea to pass this bill now in order to comply with the court ruling, but are you automatically dismissing any possibility of providing this committee with new recommendations in the fall on a new approach to recognizing political parties, so that they can be identified on the ballot and we can avoid the problems that Mr. White referred to earlier? That is my first question.

My second question...

Mr. Jean-Pierre Kingsley: Would you prefer to ask your question?

Mr. Stéphane Bergeron: However you like, Mr. Kingsley. If you would like to answer my first question right away, I can wait to ask the second one.

Mr. Jean-Pierre Kingsley: All right. I would ask my colleagues to jump in if they have something to add.

I believe that it is important to keep in mind that the bill essentially sets out two levels of parties. There are registered parties, and that status is acquired only when a party has taken the major step of sponsoring 50 candidates in a general election, according to the current act. We will see what the Supreme Court decides in the appeal by the Communist Party on this point. The Court has not yet ruled on this issue.

Mr. Stéphane Bergeron: I was talking about the ballot.

Mr. Jean-Pierre Kingsley: With respect to the ballot, my comments about the number of signatures related to the provisions on party registration; that is where I said that 50 candidates could be replaced by a certain number of signatures, as I already mentioned to the committee. I am merely repeating what I have already said. Instead of 50 candidates, parties could be required to obtain 10,000, 15,000 or 20,000 signatures from Canadians eligible to vote. So it was party registration I was talking about.

Where party eligibility, or pre-registration, is concerned, the test if really as follows. The party needs to obtain 100 signatures and these must be verified, which is something we do for each signature. The party must appoint a leader, an official agent and an auditor; it has to give us this information. The party must fill out the required forms each year so that the public knows how the money is spent. I was not talking about amending the registration rules. I do not see the connection with the 12... It was not for the 12.

Mr. Stéphane Bergeron: In that case, I will try to put a more specific question. I must tell you that you unknowingly replied to the second question that I was going to ask you, and which follows upon the one that my colleague had previously put. What I mean is that regarding this, you seem to have replied to Mr. White that in responding to the Figueroa case you would not propose any other amendments to the committee next autumn.

I wanted to get some more specific answers from you because I think that Mr. White has just raised a possibility that we, as parliamentarians, should be concerned about: the court might deem this to be unconstitutional, in the case where some other Figueroa would decide to contest this in court by claiming that he would like voters to be able to know, during a by-election, that a different candidate is standing for the Communist Party. The current amendment would not allow that.

I simply wanted to know whether you would reject outright, based on the comments we have just heard, the notion of eventually giving the committee a different approach for recognizing parties whose names could appear on ballots.

Mr. Jean-Pierre Kingsley: I am not considering that at this time. I must presume that the committee, the House of Commons and the Senate will vote for a constitutional bill. Based on that, I have no questions or doubts. I must presume that my testimony, where I describe those parts of the decision that seem relevant to me, will ensure that the solution found by the House of Commons, or the Parliament's response, will be constitutional.

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Mr. Stéphane Bergeron: If I understand correctly, you do not recommend anything to this committee on any issues that have not previously passed an electoral test. Thus, this amendment to the Elections Act will have to pass an electoral test, with a report, before you can recommend anything to the committee. You will agree to these amendments without taking into account the fact that there might be a better solution and without recommending anything else to the House of Commons next autumn, even if in your mind, you have a very clear idea of what could be even more useful or efficient. Did I understand you?

Mr. Jean-Pierre Kingsley: I understand your question very well, and that is why I am pondering. Will you give me a chance to think about it some more before giving you an answer?

Mr. Stéphane Bergeron: Certainly.

Mr. Jean-Pierre Kingsley: Thank you very much.

[English]

The Chair: Colleagues, I'm just looking over to Mr. White here, who seems content. Have we completed our...? Good, Mr. Reid. Okay, Mr. Guimond? Okay. Then we're not doing too badly.

We've had two excellent groups of witnesses here today, colleagues.

Mrs. Carolyn Parrish: I didn't know you were going to allow one more round of questions. I was being patient. I just have one little one.

The Chair: Colleagues, I was about to gavel a conclusion, but would you allow Mrs. Parrish one question without preamble?

Mrs. Carolyn Parrish: Without preamble.

The Chair: All right.

Mrs. Carolyn Parrish: Thank you, Mr. Chair.

On page 3 of the bill, proposed section 91 reads:

No person shall, with the intention of affecting the results of an election, knowingly make or publish any false statement

They've added the word “knowingly”. Is that any more enforceable than before they added the word “knowingly”?

Mr. Stéphane Bergeron: Which part?

Mrs. Carolyn Parrish: Proposed section 91.

Ms. Diane Davidson: The reason they added the word “knowingly” is that the word exists in the French, first of all. It didn't appear in the English version of the text.

What it adds is mens rea, intention. That is an element that, from a legal point of view, you would have to prove. I think you would have to prove the intention, the guilty intent. From a legal point of view, it's a very important concept.

Mrs. Carolyn Parrish: So if a whole bunch of Canadian Alliance people put out pamphlets in the last election—which they did—saying certain candidates support child pornography and like the release of child pornographers into society, could they be charged under this proposed section if that was actually on pamphlets?

Ms. Diane Davidson: If they knowingly make a false statement of fact in relation to the personal character or conduct of a candidate—

Mrs. Carolyn Parrish: Yes.

Ms. Diane Davidson: —then, yes, absolutely.

Mrs. Carolyn Parrish: Thank you. We'll see them in court.

The Chair: All right, no need for any.... Mr. Kingsley.

[Translation]

Mr. Jean-Pierre Kingsley: I am not ready to state categorically that there will be not be any recommendations about this next autumn, because I would have to commit myself to something that I cannot promise.

[English]

The Chair: All right, thank you for that clarification.

Thank you, Mr. Kingsley and staff.

Colleagues, we're adjourned to the call of the chair.