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]

Wednesday, November 17, 1999

• 1538

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I see a quorum, colleagues, so I'll call the meeting to order. We're continuing our study of Bill C-2, the Canada Elections Act.

Today we have witnesses from the media and broadcast area. There are two groupings. From the Canadian Newspaper Association, we have Anne Kothawala, Blair Mackenzie, and Michael Doody. From the Canadian Association of Broadcasters, we have Cynthia Rathwell and David Goldstein. As we go through their presentations, they may wish to be more specific as to their specific responsibilities in those organizations, and their backgrounds.

I will follow the order that is on our agenda and order of the day. What we usually do is invite our witnesses to make submissions of approximately 10 minutes. Then, having heard all of the witnesses, we would engage in one or more rounds of questions from the members of Parliament who are present. If that's acceptable, we'll proceed.

We'll start with the Canadian Newspaper Association. Can I ask if you are collaborating in one presentation?

Ms. Anne Kothawala (Vice-President, Policy, Canadian Newspaper Association): Yes, we are.

The Chair: You are. Okay, thank you. Please proceed.

Ms. Anne Kothawala: Thank you very much, Mr. Chairman.

[Translation]

Mr. Chairman, members of the committee, thank you for inviting us to appear before you to comment on Bill C-2. I'm Anne Kothawala and I'm Vice-President, Policy, of the Canadian Newspaper Association. With me are Mr. Blair Mackenzie, Vice-President and General Counsel for Southam Inc., and Mr. Michael Doody, Vice- President and Legal Counsel for Thomson Newspapers.

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[English]

The CNA represents 102 English and French daily newspapers across the country. Our objective is to ensure the continuance of a free press able to serve its readers effectively. It is in this context that we have concerns about Bill C-2.

Mr. Blair Mackenzie (Vice-President and General Counsel, Southam Inc., Canadian Newspaper Association): Mr. Chairman, before I continue, I would thank you for finding such a highly appropriate room for this hearing to take place in.

In the short amount of time that we have this afternoon, we'd like to make two points relating to drafting issues, and we'd like to make two broader points concerning Bill C-2.

We'd like to start with the drafting issues. First, we would ask you to look at the language in section 328, which prevents the publication of opinion poll results in the last two days of an election campaign. On its face, this is a ban on the publication of any poll results at all, including previously published polls.

In his recent appearance before the committee, Minister Boudria indicated that the publication ban in Bill C-2 is not intended to prohibit discussion of previously published polls. We welcome his assurances. However, we would ask that the legislation be changed to reflect his comments.

It would be a mistake to think that our concerns are misguided and that no one could possibly interpret Bill C-2 as a ban on publication of previously published polls. We would remind you that this is precisely how the Ontario Court of Appeal interpreted the comparable provision in the current Canada Elections Act.

Second, we would ask you to look at the words in subsection 326(3), which requires those who sponsor public opinion polls to disclose polling methodology. We can understand why the government wants those who sponsor public opinion polls to provide this information. However, the words of the section require that this information be provided only after—and I underline “after”—the survey results are transmitted to the public. The net effect of subsection 326(1) is that without this information, the opinion polls cannot be transmitted to the public in the first place. We would ask that this be cleaned up.

We have two broader concerns with Bill C-2. It is likely that these concerns will have to be resolved in the courts. However, we would urge committee members to carefully consider our comments and to recognize that amending the legislation now is the more logical solution. It is in none of our interests to drag these issues through the courts yet again. There must be a better way to spend taxpayers' dollars.

First, it will come as no surprise that we regard the proposed two-day ban on the publication of public opinion poll results as unconstitutional. Whether it's for three days, two days, or some other period, a publication ban is still a publication ban. Nothing in the judgment of the Supreme Court in the Thomson-Southam matter suggests that a three-day ban was too long, but a two-day ban would be acceptable.

From our perspective, the matter is very clear. A ban on publications such as this is an obvious infringement of the charter. In court, the onus will be on the government to demonstrate that the publication ban is a reasonable and justifiable limit of a charter right. This means that the government will have to demonstrate clearly how the publication of opinion polls harms the election process.

In the last round of litigation, the government was unable to come up with credible or compelling evidence of any significant harm. Without it, the three-day publication ban necessarily went down to defeat. As far as we can tell, nothing has changed. There are no new studies or reports. The emperor had no clothes the last time and has no clothes now.

In his recent remarks before the committee, Minister Boudria suggested that the blackout was not terribly onerous, as it would only apply to newspapers that publish on Sunday. With all due respect, we must disagree. Not only are there important newspapers that publish on Sunday, including the Toronto Star, La Presse, the Ottawa Citizen, and the Vancouver Province, to name but a few, but all CNA member newspapers publish on Monday. We reject the argument that the timing of the ban somehow makes it acceptable. The principles we have outlined are at stake no matter when the ban begins or ends.

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We would also note that subclause 326(1) also raises the important issue of forced speech. We do not agree that the government has the right to compel the media to report the news in a particular way. The issue of the constitutionality of forced speech in a news context was not formally argued in the Thomson and Southam litigation. It is an issue that remains very much open for our courts to review.

Finally, we want to register our objection to the $150,000 limitation on third-party election and advertising spending. The net effect is to ensure that the political parties and those seeking election have an effective monopoly on access to national and local advertising media during the campaign. This significantly limits the national conversation that can take place during an election campaign. We very much doubt it is constitutional. This is a fight that will likely be taken up by others. However, we would not want to miss this opportunity to register our point of view.

Mr. Chairman, that concludes our formal remarks. We will do our best in due course to respond to your questions.

I should also draw your attention to a schedule in which we have set out some of the principal extracts from the decision of the majority judges in the Thomson and Southam litigation.

Thank you.

The Chair: I thank you for that. I suppose we could thank you for appending the schedule and I suppose we might find those comments interesting, but given the evolution of the charter and the role of the courts, the role of legislating falls to the House and the Senate, and that's what we're going to do. Thank you for providing us with the views of the court.

Now we'll go to our next witness, the Canadian Association of Broadcasters. Please proceed.

Ms. Cynthia A. Rathwell (Vice-President, Legal Affairs, Canadian Association of Broadcasters): Thank you. I suppose we too will be presenting some of the views of the court, but they are also the views of the Canadian Association of Broadcasters, so I'll proceed.

My name is Cynthia Rathwell and I'm vice-president of legal affairs at the Canadian Association of Broadcasters. With me today is David Goldstein, the CAB's director of government relations.

The CAB is a national association that represents the vast majority of programming services, including private television and radio stations and networks, as well as specialty services. The CAB thanks the committee for the opportunity to appear before it today and to provide its comments concerning Bill C-2. We may also wish to provide you with more detailed written comments within the next couple of weeks.

As transmitters of election advertising and as producers and providers of news and public affairs programming, broadcasters are directly affected by the proposed law. As regulated businesses with significant public responsibilities required by law, broadcasters are also experienced in considering the public interest issues involved in political and election advertising.

The Broadcasting Act places upon us the responsibility to safeguard, enrich, and strengthen the political fabric of Canada; originate programming of high standard; and provide reasonable opportunities for public exposure to differing views on issues of public concern. Our members are thus well acquainted with the importance of remaining conscious of the impacts of their programming.

Finally, as businesses that are aggressively positioning themselves to succeed in the next century, broadcasters have assessed the emerging media environment and its possible and probable effects on the way people will receive entertainment and information over the next five to 10 years.

All of these factors inform our comments today on Bill C-2, comments we wish to limit to the following key issues: first, the proposed restrictions on the transmission of election opinion surveys and election advertising in the two days prior to the close of polls and the proposed limits on third-party advertising expenditures; second, the ultimate efficacy of measures designed to control the flow of political expression in the emerging new media environment; and finally, new proposed timeframes for consultation pertaining to advertiser-broadcaster disputes surrounding the sale of airtime.

The CAB strongly opposes, on principle, the ban on the transmission of opinion surveys running from the day before the election until the close of polls. This matter was dealt with clearly by the Supreme Court in Thomson Newspapers Co. v. Canada (Attorney General) with respect to a similar section of the Canada Elections Act.

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As you know, in the Thomson case, the court struck down the opinion survey publication ban. While the court confirmed the validity of the government's objective of guarding against possible influence of inaccurate polls, it went on to find that the use of a publication ban was an unnecessarily broad means of achieving that objective.

Without guaranteeing that a requirement for methodological disclosure would be a constitutionally sustainable alternative to the publication ban, the government discussed the possibility of that alternative as follows:

It is clear...that a provision which prohibited the publication of opinion polls without methodological information would be less intrusive to freedom of expression than a ban on the publication of polling information during a crucial period. In the first case, the speaker has a choice: by complying with the prescribed conditions, he or she may engage in the speech. In the case of the ban, the speaker has no such choice. The information may not be expressed....

I should clarify that that is not the government's position; that was the court's position. Sorry for the oversight.

Bill C-2 remains a substantial publication ban, albeit one that has been reduced from three days to two, and the requirement of methodological disclosure has been added. The constitutional sustainability of that ban is therefore in grave doubt, notwithstanding that the duration of the ban has been slightly shortened. As the court held in Thomson, such a ban:

...is an interference with the flow of information pertaining to the most important democratic duty which most Canadians will undertake in their lives: their choice as to who will govern them.

The CAB urges the government to remove the publication ban provision of Bill C-2 rather than face a challenge in the court that is costly, both in terms of dollars and in terms of the perception it creates that the government wants to restrict Canadians' free access to political information. As Mr. Justice Bastarache said on behalf of the majority of the court:

I cannot accept, without gravely insulting the Canadian voter, that there is any likelihood that an individual would be so enthralled by a particular poll result as to allow his or her electoral judgement to be ruled by it.

The CAB is also concerned that the two-day ban on election advertising immediately before the close of polls may constitute a breach of the Charter of Rights. That being said, we support a reduction in the duration of the ban from three days to two.

Finally, the CAB wishes to note that the restrictions on third-party advertising expenditures may also constitute insupportable limitations on such charter rights as freedom of expression, freedom of association, and the right to make an informed vote.

Whether or not any of the measures we've discussed are challenged in the courts or overturned on charter grounds, the CAB wishes to offer the committee its observations on an equally important issue: the feasibility of maintaining the effectiveness of such measures in the emerging media environment.

The CAB has recently engaged itself in the development of an in-depth strategic plan to prepare broadcasters to take on and participate in new media. The first stage of that plan is an analysis of possible and probable developments in the way content will be provided and received. It indicates that new media will, within five to 10 years, provide services that look remarkably similar to broadcasting and that will be widely used. It also shows that traditional media will migrate into new media to remain relevant and to expand their reach.

Moreover, it's the view of the CAB, which is shared with other major media such as newspapers, CBC, telephone, cable, and on-line companies, that it is not practically possible to impose traditional content regulation on new media. Such regulation would be completely unacceptable to the Canadian public and impractical, because the Internet does not respect geographical boundaries.

In its own consideration last spring of whether or not to regulate the Internet, the CRTC decided it would exempt new media undertakings from regulation. At the same time that new media cannot be regulated, it's equally important to note that the efficacy of measures placed on traditional media such as broadcasters and newspapers will be undermined as the popularity of new media grows. If one group of media are subject to restrictions while another cannot be restricted, Canadians will simply look to the unrestricted media for the information.

In a society where the most important commodity is rapidly becoming information, the idea that information flow can and must be controlled to ensure that Canadians are not misled will simply become obsolete. The answer to the perceived problem of unbridled information is media literacy to prepare our citizens for this new environment, rather than limited access to that information.

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We note that the bill itself tries to address the phenomenon of new media in a few different places, notably clause 319 concerning the definition of election advertising, where individuals' websites are excepted, and clause 324, where information posted to websites prior to the advertising ban period is excepted from the ban.

At the same time, other clauses of the bill remain silent on new media issues, notwithstanding that the objectives of such clauses can and will be circumvented completely by the unique technological characteristics of new media. For example, clause 330 of the bill bans election advertising on broadcasting stations outside of Canada. It does not, however, address the issue of the use of advertising on foreign websites or information posted on foreign servers.

To be very clear, we're not suggesting that the Internet can or should be regulated. In fact, we believe it neither can nor should be. What we are saying simply is that whether or not the measures we have discussed today are challenged and overturned or upheld by the courts, their objectives of protecting Canadians from inappropriate information will become increasingly difficult.

Finally, turning aside very briefly from the broader issues we've addressed, there's one particular clause of the bill that the CAB believes should be amended. Clause 344 requires that following the receipt of notice from an advertiser that it wishes to purchase broadcast air time, a broadcaster must consult with that advertiser within two days. Furthermore, if an agreement with respect to the sale of air time can not be concluded within two days, the matter must be referred to the broadcast arbitrator.

In the current Canada Elections Act, three days is afforded for consultations and for the reference of disputes to the arbitrator. As a matter of business practice, we're not aware of any cases in which these timeframes have impeded fair access to the media such that they merit any reduction to the new proposed two-day period. In fact, the proposed expansion of the period for air time sales to the date on which the election writ is dropped, rather than 29 days prior to election day, means there will be more time to negotiate contracts and resolve disputes.

In the absence of convincing evidence as to why the period of negotiation or reference to arbitration should be reduced to two days, we urge the committee to amend clause 344 to restore the three-day periods.

In conclusion, we'd like to express our appreciation for the ability to appear before you today. We appreciate the importance of the task before the committee, the crafting of a new act to ensure the conduct of fair elections going into the 21st century.

In the interest of ensuring the effectiveness of the act going forward, we urge you to consider the ultimate efficacy of measures that seek to control the flow of information in a world dominated by new media. As well, we urge you to consider the impression such efforts create among an educated electorate well in tune with the new information society.

Thank you.

The Chair: Thank you.

Now I'll go to Mr. White for the first five-minute round.

Mr. Ted White (North Vancouver, Ref.): Thank you, Mr. Chair.

Mr. Mackenzie, I was interested in your discussion of the forced speech issue in relation to the release of polls. I'd like to ask you a question in connection with that. Would it be acceptable to you to have no ban on the publication of polls at any time during the election campaign but to require that every poll published during that period would have to be accompanied by the information that's listed in that subclause 326(3), the methodology, who requested it, and so on? Would this be a problem, or something you could live with?

Mr. Blair Mackenzie: Certainly that would be a much more acceptable alternative to us than the concept of a publication ban. I think we can speak to that with a clear conscience because I think our industry has had a pretty good record of publishing methodological information and of making it clear when we publish opinion poll results that are not based on any scientific survey but are of the nature of a hamburger poll. So the result you are suggesting comes reasonably close to what I think we have been doing without legislation for a long time.

Within our industry we have issues of concern over forced speech. We would want to think about that. I would have to say that, yes, of course, the kind of direction you're talking about would be infinitely preferable to one that sends the message that the government can suppress information in the course of an election campaign.

Mr. Ted White: The position of the official opposition on this is that, like you, we don't believe it's proper to restrict the publication, and to find a way to do it that still allows a flow of information to voters is important. I think maybe that's a way out of it. I hope the government can think about that one.

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Ms. Rathwell, you raised interesting points about the Internet and the way media is changing the way people get their information. Particularly, you mentioned a couple of areas that I had noted as well, the clauses that made reference to personal websites and so on. Again, the official opposition agrees with the position you're taking. It's a hopeless task to try to regulate what's happening now in the realm of personal communications. So in fact I believe, frankly, that the way the bill is structured, it's not facing the realities of today's modern world. If it's any consolation, if we had anything to do with it we would amend those clauses.

What I would like to ask you, though, is the same question I asked Mr. Mackenzie, and that is if you were free to publish the results of polls at any time during the election campaign, would you be happy to do so if it had an attachment or a requirement that you had to publish the methodology at the same time?

Ms. Cynthia Rathwell: Yes, I think my answer is basically identical to that of Mr. Mackenzie's. Our members are in the regular practice of disclosing the information in any case, and they feel it's part of their duty as a facet of reporting the news as well as living up to their high standards requirement under the Broadcasting Act. So yes, that would be satisfactory for broadcasters.

Mr. Ted White: Actually, subclause 326(3) is fairly comprehensive, I think a little more detailed than you would find normally on a radio broadcast, which says 3,000 people across two territories.

Ms. Cynthia Rathwell: Yes, we've discussed the list among our members specifically. There is a concern that radio not be overburdened, frankly, because it's most difficult in that medium, even more so than television, because you can't display things visually.

Not withstanding that, I myself ran through it a couple of times, and I think you can get the information in a broadcast format fairly succinctly. One idea I did have was if the sponsor of the survey and the name of the person and the organization that conducts the survey is identical, then the disclosure of that one should be sufficient. You shouldn't have to note out the two separate roles, or whatever.

Mr. Ted White: Would you recognize and accept that during an election campaign it's a little different from a regular broadcasting environment and so perhaps there might be a need to provide more information than would be necessary at other times, other than in an election campaign?

Ms. Cynthia Rathwell: In general I think most of this information is provided, and there are other instances, such as leasing disclosure, granted that in terms of the importance of that kind of expression it's nowhere near as important as political expression during an election campaign.

That being said, what we want to do is convey as much information as possible to our listeners as a public service matter. I think most of that is doable in a broadcast medium. If it were a prohibitive list and prevented us altogether, for practical reasons, from not reporting poll results, then it would be problematic. But the list I see there as it applies to broadcasting media seems reasonable.

Mr. Ted White: Thank you. That's the only question I have, Mr. Chairman.

Ms. Cynthia Rathwell: Sorry, before we leave that, with respect to your new media comments, my comments regarding the new media had a second thrust to them. First of all, I agree with you that it's very difficult or impossible to regulate speech in the new media, but I wanted to emphasize that it has spin-off results for the existing media in that the existence of two parallel systems is non-tenable.

Mr. Ted White: Point well taken. Yes.

Ms. Cynthia Rathwell: Thank you very much.

The Chair: Madame Dalphond-Guiral.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you for coming this afternoon. I have three questions and I'd like to hear each one of the three witnesses on them.

Here's my first question. In Mr. Mackenzie's presentation I felt opposition, if not great reservations, concerning publication of names of clients ordering polls. That's what I felt. However, everyone recognizes the professionalism of the polling firms. Electors being intelligent, as you said and as we think, it is clear that when a serious polling firm polls seriously, the result will not vary depending on the client ordering it.

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I'd like to understand why you so adamantly don't want the name of the client to be divulged. That's my first question.

My second one has two parts. You're unanimously opposed to the $150,000 limit for third parties and the values you're raising, of course, are values that are found in the Charter: freedom of expression and of opinion.

I suppose you feel that there should be no limits. I'd like you to tell me why you think there should be none once the Charter and freedom of expression have been set aside.

I also have more technical questions for you. Presently, in 1999, the cost of a page of publicity in a national newspaper, not on page 49 but in a good position somewhere, or one minute's publicity on TV during prime time is very high. I'm convinced that $150,000 won't get you very much publicity from coast to coast in both official languages.

Mr. Blair Mackenzie: I'm sorry Mr. Chairman, but I'm not really in a position to answer in French. If you don't mind, I'll continue in English.

Ms. Madeleine Dalphond-Guiral: Absolutely. We're in a bilingual country and I always have my earphone on.

[English]

Mr. Blair Mackenzie: The first question, if I have followed it correctly, was one of wondering why we would be concerned at disclosing the source of an opinion survey. It is not our position that we are concerned about disclosing. That is not part of our concern at all.

The concern we referenced was primarily that we have an issue around being required to report the news in a particular way, and you will understand that's a philosophical issue. But it is not part of our concern that we be obliged to disclose who might have conducted the survey. Indeed, we normally do so.

Does that respond to the first question?

[Translation]

Ms. Madeleine Dalphond-Guiral: So you have reservations about divulging the methodology.

Mr. Blair Mackenzie: And the idea itself.

Ms. Madeleine Dalphond-Guiral: Agreed, the idea itself.

[English]

Mr. Blair Mackenzie: It is being told by the government: you must, when you report the news, say the following. That is a difficult area for us, to be told how we must report the news, what words we must use, how we must disclose it.

The second issue you raised was relative to the $150,000 limit, and if I followed your question, you wanted to know if we had a dollar limit in mind. I must confess, from our position in CNA, we did not come to this meeting this afternoon with a dollar limit in mind. It is an issue that we suspect others will take up. We have a fairly obvious revenue interest and are concerned that if we tried to make that our fight, various people would say we are simply in it for the money.

I don't think that's fair. But it's for that reason that we will gladly cede that ground to others, and we don't have a dollar limit to suggest to you.

Anne, I'm in your hands as to the cost of a full-page ad in, for example, the National Post or the Globe and Mail in the A section. I'd be happy to get back to you. I should know the answer, but I don't.

Ms. Anne Kothawala: And I'm afraid I don't either.

Mr. Michael Doody (General Counsel and Secretary, Thomson Newspapers Company Limited; Canadian Newspaper Association): Indeed, I should know that for the Globe and Mail too, but I don't. But we can definitely get it for you.

Ms. Madeleine Dalphond-Guiral: Maybe I'd be more lucky in asking for a TV spot.

Mr. Michael Doody: Maybe.

Ms. Cynthia Rathwell: I'm sorry to disappoint you on the information on the TV spot. I think the only answer I can give is that there's a range. It can range anywhere from several hundred dollars for a 30-second spot to hundreds of thousands of dollars, depending on the nature of the program and the time. You said prime time, so I think we're certainly looking at thousands of dollars in most cases, although in the realm of specialty services it can be significantly less than on a conventional over-the-air service, because they have a smaller audience and have niche programming.

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With respect to your other questions, like the newspaper association, I'm sorry if there's some misunderstanding, but we were not concerned with disclosing the source of the polling data, and as far as the appropriate number, if any, for third-party expenditure limits is concerned, our members haven't considered what an appropriate level would be. In general, we're concerned with the principle of not putting an unwarranted restriction on it, but like the newspaper association, our primary concern is the opinion poll ban.

Ms. Madeleine Dalphond-Guiral: Do you have in mind an amount for limitation of expenses for the third party?

Ms. Cynthia Rathwell: No, I'm sorry, we haven't considered it.

The Chair: Okay. Thank you.

Ms. Parrish.

Ms. Carolyn Parrish (Mississauga Centre, Lib.): Mr. Mackenzie brought up the nasty subject of a little bit of self interest here on the $150,000, because obviously, particularly in the written media.... Every time there's a controversy on the Hill, the Hill Times' coffers get filled with people taking ads out to impress MPs and the surrounding multitudes. You brought it up, so I'm going to go back to it.

I believe there is a vested interest in it, because when we have limits on our election expenses—we're not talking about third parties—we have to pay for phones, rent, pamphlets, and ads. Every penny that's spent in that 36-day period is accounted for. Third parties, who often operate out of a normal office and have normal phone lines, are not paying that. They already have a slight advantage.

Secondly, they have three and a half to four years, 365 days of the year, to put ads in your papers and on your televisions to blast us off the face of the earth if they choose to. I'm curious that you talk about charter rights and freedom of expression when you talk about that. I don't understand why it wouldn't apply to us then. Are we different? Why are there spending limits on political parties? Why not say, okay, we're going to rebate you up to $60,000, because that's taxpayers' money, and anything you want to spend over that is your freedom of expression. You just get out there and spend a billion, and get 99% of the vote.

I'm curious about all that. It seems to be a little uneven. Politicians are kept in this nasty little box and fumigated occasionally, while the third parties are considered to be the heroes of society, and obviously, paying money into your coffers for ads. Speak to the Charter of Rights and Freedoms on our limits and just make me understand that you don't have a vested interest in this.

Mr. Blair Mackenzie: Mr. Chairman, as I think you appreciate from our remarks, this is not one that we regard as our fight. This is really one that will have to be taken up by third parties. As I would appreciate their position, their concern would be—and you'll appreciate, this is really for them to say, not us—along the following lines. It is all well and good, appropriate, and understandable that Parliament may wish to limit political party spending, but we, meaning the third parties, don't understand that if the aggregate spending at a political level is $20 million, why the level for a given third party would be $150,000. But I'm trying to put their voice onto it, and that's not appropriate. You'll need to hear it from them.

Ms. Carolyn Parrish: May I interrupt?

Mr. Blair Mackenzie: I think that's at the basis—

Ms. Carolyn Parrish: The $150,000 is for one organization. If you manage to stir up 60 or 70 organizations, they could quickly get up to huge amounts of money. The $150,000 isn't for all that are playing; it's per organization.

Mr. Blair Mackenzie: I say again, that's a matter to be taken up with the third parties. But I think there is a legitimate charter argument that they will have to put to you that if the limits are disproportionate, there is an issue there for the courts to review. That's about as far as I can take it.

Ms. Carolyn Parrish: Well, how about the charter argument—and I'm just picking your brain, because I was very impressed with the way you speak, and you sound like you can walk and chew gum at the same time, so....

I thought maybe you were trying to stop me, Mr. White.

What do you think about the limit on third parties then? If I were to say to you, I'm going to spend the $60,000 for my riding and I'll get a rebate based on that, and if I want to, because of the Charter of Rights and Freedoms, I can spend anything I want over that to express myself, would you have an objection to that?

Mr. Blair Mackenzie: Let me respond first by saying that I'm here on behalf of the CNA, and of course you are therefore going to get a personal response, because the CNA has no business responding to that question. I understand perfectly why there should be limits on political party spending. If you want a personal answer, it troubles me not at all to see limits, and indeed I would be very concerned to see a complete lack of limits. I agree with you that there is a fundamental fairness in creating spending limits. I don't have any difficulty with that at all.

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The difficulty that I think the CNA perceives, and that I suspect you will hear relative to third parties, is that there is a sense that a $150,000 limit per organization is too low in the scheme of things, and it speaks directly to the issue raised by the representative of the Bloc Québécois about the amount of money it takes. I don't believe $150,000 gets you very far.

Ms. Carolyn Parrish: I have one last question, if I still have time.

If I, as a Liberal Party person—not a member of Parliament, separate and apart—were able to raise $100,000 a year through my riding association and wanted to put an add in your paper once a week for four years talking about the glories of my service to the country and the Liberal Party, would there be a hue and cry?

Mr. Blair Mackenzie: I'm not sure I follow the question.

Ms. Carolyn Parrish: Third-party advertisers have 365 days of the year to advertise.

Mr. Blair Mackenzie: Okay, now I see where you're headed.

Ms. Carolyn Parrish: Now if I, as a Liberal, took a full-page ad in the Toronto Star—I'd have to be a very rich Liberal—every week for 52 weeks of the year for four years, would there not be an extreme hue and cry that the Liberals were using their money-making machine to put their ideas forward rather than good sensible talking to the people through the House of Commons?

Mr. Blair Mackenzie: Perhaps there would. I think, in fairness, you're asking a question directed to the wrong organization. We came here on behalf of CNA to speak to the issues that rise in the context of the election, as opposed to political expenditures generally throughout the year. I'm sorry, I'm not trying to duck. It's just that I'm honestly not in a position to respond at the level you are ready for.

Ms. Carolyn Parrish: And the last thing I would ever want to do is be unfair to the media.

Mr. Blair Mackenzie: I appreciate that.

Ms. Carolyn Parrish: When you open the subject, when you introduce it in your presentation, then you open yourself to questions.

Mr. Blair Mackenzie: I think it was raised in questions and we responded to it at that level. I don't think we raised it in our brief, save relative to registering the concern about a limit.

Ms. Carolyn Parrish: Hey, listen, you're fair game in here.

Mr. Blair Mackenzie: That's fine. I'm happy for it.

The Chair: Thank you.

Mr. Solomon.

Mr. John Solomon (Regina—Lumsden—Lake Centre, NDP): Thank you, Mr. Chair.

With respect to polling, I've seen the Supreme Court judgment and read it. Your association and your members can broadcast and print news every day of the year and every day of the election campaign except for the last two, if these amendments before the House are put forward. How do you see that as a problem, number one?

Number two, do you not think it would be unfair if a rogue poll was published, say the day before the election, and there was no opportunity to respond to that rogue poll? I've been in 37 election campaigns, and I've seen some very vicious rogue polls. They've had some effect with some of the undecided voters in the country, whether they're municipal, provincial, or federal voters. I'm wondering why you think it's fair to do that, but it's against the Constitution or the Charter of Rights if we were to say there's a two-day quiet period for people to sort out these messages from the previous number of weeks of campaigning.

Mr. Michael Doody: Firstly, speech during an election campaign is probably more important to the country than speech during other times. The ability of people to be able to communicate during the election campaign and indeed right up to the last minute is essential to the democratic nature of the country. That's what the Supreme Court said last year when it came down.

I wanted to address something Chairman Lee said just at the end of our initial remarks. He made some comments that suggested that the Supreme Court of Canada decision was interesting, but merely of historical interest and not really relevant to what's before us here. I don't think anybody should be under any illusions that the publication ban that's proposed here is basically just the same as the publication ban that was in force previously, which the Supreme Court struck down. Now, it was a three-day ban before and it's a two-day ban now. Given that it's the last period of time before the election, I don't think that's going to be of much consequence.

I'd like to refer to a couple of lines from the judgment, which are not in the excerpt we gave you, that I think address the principle of why they found this publication ban offensive. They said, in regard to the previous legislation, the assumption underlying the three-day ban, why the three-day ban was okay:

...suggests that Canadians will become so mesmerized by the flurry of polls appearing in the media that they will forget the issues upon which they should actually be concentrating. This reasoning cannot be countenanced. Canadian voters must be presumed to have a certain degree of maturity and intelligence.

• 1620

We feel pretty strongly that the continued ban flies in the face of any assumption that Canadian voters have a degree of maturity and intelligence. Some people might even say this continued ban is a little contemptuous of Canadian voters, that Canadian voters should have information hidden from them right up to the crucial moment of making the vote.

Mr. Blair Mackenzie: I'd like to add to that in one respect. As I heard the question, the central question is, what is so wrong with a ban, especially in an environment where, as you say, there may be the odd opinion poll published that is incorrect?

Mr. John Solomon: There has been. That's a fact. You know that better than I can tell you.

Mr. Blair Mackenzie: No one would want to dispute that.

The way I would like to respond to the question is at a very simple and factual level.

It will be very difficult to find any ethical publisher anywhere in this country, in either of our official languages, who wants to have it on his or her résumé or career description that they are the ones who actually released information that jeopardized an election. There is absolute and complete identity of interest around not messing around with the election or causing an election to be jeopardized by the improper release of information. There, there is real identity of interest.

Where there is divergence of interest between us is that we do not see, and have not yet seen, any evidence of the harm. We have heard a great deal of speculation. We have heard any amount of talk about “maybe” and “perhaps”, but nothing that demonstrates the real harm. If there were such a demonstration, you would have our complete attention, because, as I say again, no publisher would want that on their conscience or on their résumé to have jeopardized an election. We have yet to see the problem.

For what it may be worth to members of the committee, Mr. Justice Bastarache dealt with that, to say yes, every so often incorrect information is published. But in an environment where any amount of this information comes out, it balances itself out. Voters will understand that the poll result doesn't make sense. They must be understood as having that modicum of intelligence. That is the reasoning we would adopt as well.

Mr. John Solomon: The other question I had pertains to third-party funding. Ms. Parrish referred to the third parties. We have 3,300 registered lobbyists in Ottawa. Two are present this afternoon. You have every day for four years to do what you have to do as lobbyists. That's fine. It's a democracy and you have a right to do that.

But in the sense of the other third parties, the other 29 million plus who are third parties, you're suggesting that there should be no rules for them during an election campaign in terms of expenditures, but there should be rules for the 12 registered political parties during an election in which, by the way, the 12 parties put their platforms forward from which people should be judging them, and yet they're restricted by funding.

You do support that, but the question I have is, as broadcasters and newspapers, how would you allocate advertising? Let's say the 3,300 lobbyists came to you during an election campaign and they each have $1 million to spend in various regions, so you're looking at tens of millions of dollars. Would you like to have unfettered authority to allocate who gets the advertising, as opposed to some rules? Or have you no rules for that either?

Mr. Blair Mackenzie: If I may respond first, it is no part of our position to suggest that there should be no limits on third-party advertising. We are not suggesting it should be unlimited. We are simply saying we side with those who undoubtedly are complaining before you that $150,000 looks very low in the scheme of things. I think that is a fair way to put our position. We are not going to the point of saying there should be no limits. I don't think we've taken that position at all.

Mr. John Solomon: How would you allocate the advertising? How do you prioritize it?

Ms. Cynthia Rathwell: If I may, for the Canadian Association of Broadcasters, we've no objection to allocation rules as they currently stand under the existing legislation or under the proposed bill. There's a broadcast arbitrator and an allocation scheme for both the registered parties and then for additional third parties beyond that.

• 1625

In addition, we're subject to CRTC balance policy, which requires a fair and equitable distribution of programming. So if there's a complaint about any way we make such an allocation, it becomes a matter of public record and part of our licensing processes, and therefore that's a safeguard on unbalanced allocation.

Like the Canadian Newspaper Association, we're not taking any position on what the appropriate amount should be. Our position is not that there should be no limit, and we certainly don't favour unbalanced allocation.

Mr. Michael Doody: On the allocation point, newspapers have a little more flexibility, because we don't have a fixed number of seconds in a day; we can increase the size of the newspaper by using more newsprint. So there's some flexibility there.

Mr. John Solomon: Thank you.

The Chair: I would like to clarify something with Ms. Rathwell. Did I hear you say that broadcasters were required to balance their advertising—

Ms. Cynthia Rathwell: Yes, I did.

The Chair: —or were you saying they had to balance the programming?

Ms. Cynthia Rathwell: They have to balance both. Advertising is considered a form of programming at the CRTC as well. So I think it would be challengeable were advertising to be distributed in an unbalanced fashion.

The Chair: Where is the guidance or directive or regulation for the balance of the advertising contained?

Ms. Cynthia Rathwell: I believe it would be the CRTC policy on balance in community programming.

The Chair: It sounds like it would be a difficult task to balance the bottom line with other balances.

So you're saying broadcasters do advertently balance their advertising during political campaigns?

Ms. Cynthia Rathwell: They are conscious of their overall programming throughout the broadcast day—

The Chair: I know they're conscious and they have consciences, but—

Ms. Cynthia Rathwell: No, I didn't say “conscience;” I said “conscious” of their obligations. I'm not trying to be flippant. But if there were some sort of a concern that imbalance in programming was being affected by excessive advertising by any one party, whatever “excessive” may amount to, that would certainly be a matter to which a broadcaster could be subject to scrutiny by the CRTC, and I can say in all honesty that they would take it into consideration in their programming practices.

The Chair: Okay, thank you.

Ms. Catterall, do you have questions?

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Yes, I have a couple of questions on polls.

Polls come from a whole variety of places. They may be initiated by a polling firm and then sold to somebody, but increasingly they are initiated by media of one kind or another. It seems to me that by commissioning polls, the media are in fact creating news. Why do they do that?

Mr. Blair Mackenzie: I think you have put your finger on it. It is considered by our readers to be newsworthy, and if the media sense that there is reader interest in an area in which no one else has done a poll, then they feel free to commission one of those polls.

Ms. Marlene Catterall: You wouldn't go out and light a fire or have a car accident or steal something to create news, but in this case you're choosing to create news. Why?

Mr. Blair Mackenzie: Our readers consider it to be of interest. I'm not sure I follow what the difference is.

Ms. Marlene Catterall: They consider a fire interesting and newsworthy. They consider many things interesting and newsworthy. But the media do not go out and create those news stories; they report them.

Ms. Anne Kothawala: It is not in their control.

Mr. Michael Doody: This is not the creation of the opinions that are reported on; this is the finding out what those opinions are and then reporting on them, which is different from your analogy of actually going out and creating a fire.

There are opinions held by people out there. The purpose of the poll is to determine what those are and then they are reported on, but it's not to create the opinions.

Ms. Marlene Catterall: Do polls always agree?

Mr. Michael Doody: No.

Ms. Marlene Catterall: So there is no such thing as a totally objective poll?

Mr. Michael Doody: Quite possibly not.

Ms. Marlene Catterall: Okay.

I'm coming to my point, which is this. Polls do disagree. They may disagree because of methodology, the questions that are asked, or the skill of the firm undertaking the polling, but in any case, as you mentioned, Mr. Mackenzie, the Star gets to publish on Sunday and the Globe and Mail does not. So the Star gets an advantage over the Globe and Mail because it's able to create a news story for that day, and therefore there's no opportunity for the public to see a balanced discussion of that poll from two different newspapers.

• 1630

Mr. Michael Doody: The Globe comes out on Monday.

Ms. Anne Kothawala: Yes. Monday seems to have been forgotten in this. With all due respect, Minister Boudria focused on the fact that, well, this only involves newspapers that publish on Sunday.

Ms. Marlene Catterall: Look, this is a 36-day election period, which means you can report 36 polls, at minimum. These guys can do it even more often if they choose to.

If God needed to rest for one day after seven days, I think the voters are entitled to a rest from information overload—because that's what they feel by the end of an election period—to reflect—

Ms. Anne Kothawala: Do we have any evidence of that, though?

Ms. Marlene Catterall: —and consider their opinion.

Ms. Anne Kothawala: Where is the evidence of that? That's what we're saying. If there is some evidence...and the Supreme Court agreed on that. They said—

Ms. Marlene Catterall: Okay, let me ask you this, then. Let me take your argument to a logical conclusion. If it is “the more information, the better”, I should be able to go with a candidate into the polling station to provide information to voters. Why am I banned from doing that? I should be able to advertise on the day of an election. Why I am prevented from doing that?

I think it's because there's a general consensus in this country that we have a set period of time to provide the information to voters. You use that time to the best advantage—that applies to the media, the candidates, and the third parties—and then you leave them alone to consider it for 48 hours. It doesn't seem to me that this is unreasonable. Frankly, I don't get why that extra 48 hours is important to you guys. If you can enlighten me at all, please do.

Mr. Michael Doody: In the whole series that went through the courts before, up to the Supreme Court, the government had all the chances in the world to put in as many tons of evidence as they wanted to show how prejudicial it was, and there was basically nothing. There was nothing that was in any way persuasive. So we're saying, as Blair Mackenzie said earlier, if there is substantial compelling evidence, then obviously we would pay attention to it—and the courts certainly would have paid attention to it, but they had nothing.

Ms. Marlene Catterall: Okay then, do you or do you not accept that I shouldn't be able as a candidate to go into the polls and advertise my services or campaign? If you do agree with that, tell me why you agree with it.

Mr. Michael Doody: Well, speaking merely personally, I wouldn't find it offensive, because by the time I go to the poll I know who I'm going to vote for. Other people might find it offensive. I don't know. That's my personal reaction. I wouldn't care about signs up in the polling booth. Personally, I would not care. Am I so feeble-minded that I'm going to be totally confused by the fact that I see a sign? I hope not.

Ms. Marlene Catterall: I think the underlying principle for the limit on us, the limit on advertising in the media, and the limit on polls is quite simply that people deserve a time of reflection. It's a limit that we have accepted, I think for a very good reason, frankly.

Mr. Blair Mackenzie: Mr. Chairman, do we have time for me to respond briefly to that?

The Chair: I have to admit to my colleagues that I forgot to reset my timer clock. Mr. White is going to be devastated, and Mr. Harvey is waiting for a round.

Please complete the reply and then we'll go to Mr. Harvey.

Mr. Blair Mackenzie: I will respond very briefly. We are very close to the point that our colleagues in d'expression française would call un dialogue de sourds. We're at a point where we have on the one hand a starting point that says voters deserve a moment of rest and reflection, a very widely held starting point and certainly one accepted by the minority judgment in the Supreme Court, and often heard from those who are most closely involved in the election process.

At our end, we start with a fundamental opposition to the state telling the news media what information may or may not be transmitted by the media to the public during the course of the election. If that cannot be resolved by other means, it gets to be resolved by the courts. That is what they are there for. If there is no other way to resolve this dispute, that is where it will have to be resolved once again.

• 1635

Our starting point really is one of saying, if we are being asked, or told, in this case, not to publish information, would you please show us where the harm is? We are still waiting for that answer. That, in a nutshell, is where we are.

The Chair: Thank you.

Mr. Harvey, for five minutes.

[Translation]

Mr. André Harvey (Chicoutimi, PC): I'm not very comfortable with the direction we've taken on the matter of polls and third parties. I'll just be candid here. I get the impression that we're almost facing what you call in English a buildup. I get the impression we're just about actually creating the problem. My colleague was talking about some time for thinking. I know that during that 48-hour period the choice has already been made. There maybe 1% or 2% of the voters who are still undecided during that last two-day period. I don't see how polls could actually become a determining factor at that point and why they should be prohibited, in that case. I'm not comfortable with those two questions that raise many controversial points.

To confirm this, I'd like to know if you've ever polled to illustrate the fact that polls have no impact on how citizens make their choice when the time to vote comes around. I for one think they have no impact. If we consider our own personal experience and that of all of our friends, we can see that voting has to do with elements other than the picture painted in a newspaper. I may be mistaken, so I'm asking you if you have any statistics on the importance of the influence of polls during the vote.

I have a second small point, which relates to the budget of third parties. All my colleagues work very hard to shed light on these issues. In my view, third parties do not spend millions or billions of dollars. Most of these parties are volunteer organizations which, for the most part, have trouble funding their activities. I don't expect them to spend one million or $10 million on advertising campaigns on a specific issue. But then again, it wouldn't make much of a difference because election campaigns are determined by the leadership. Polls have revealed that the largest factor by far in determining whom a voter will vote for is the party leader. Therefore, campaigns which focus on specific issues do not affect the vote. That's just the way it is.

I want to know if you have an idea of how much money was spent by third parties during the 1997 election, as well as during the 1993 election and the one in 1988, which was not based on personalities, but on free trade. That was a different situation.

People vote for a leader because they like him or her. Ideas don't count for much. I may be completely off track, but as far as I know, elections are waged around two, three or four issues, and on the confidence one has in a leader. A member can only control 5% of his vote. You must never forget this. Let's not be pretentious. We are dependent on our leaders: Mr. Mulroney, Mr. Trudeau and all the others. That's how the world works.

So, I have two small questions. First, the impact of polls and second, the amount of money spent by third parties in the media.

[English]

Mr. Blair Mackenzie: Mr. Chairman, may I may begin to respond to that?

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: Thank you very much.

The short answer is that we as an industry do not have any statistical information of our own in terms of exactly how, if at all, public opinion polls impact the election.

During the course of preparing for the litigation that took place recently, we certainly sought expert evidence from political scientists, who told us and told the court that while there were five or six effects that often flowed from the publication of opinion polls, they seemed to cancel each other out. We found no way of conducting a survey to get to the bottom of that question.

• 1640

Indeed, the government's own evidence came largely from the Lachapelle report, which by itself basically conceded that the effects were very hard to measure and largely cancelled each other out. That, of course, is at the core of the concerns we've expressed this morning.

But the short answer is, no, I don't have a survey to put in front of you to answer the question you've asked.

The second question you asked is what information we might have about third-party budgets. You made the point that many of these organizations would be very small.

The short answer is that this, too, I'm sorry to say, is not something we have any coherent information on. I can't tell you what the typical budget of an organization like that would be. That is something that will have to be pursued by anyone who may come forward and speak on their behalf.

If I have misunderstood your questions in any way, I'm sorry, and I would be happy to respond further.

Mr. André Harvey: No, that's fine.

Thank you very much.

The Chair: Mr. Goldstein wanted to add something to an earlier question. I'll give him an opportunity to do that now, if he wishes.

Mr. David Goldstein (Director, Government Relations, Canadian Association of Broadcasters): I will, unless Ms. Rathwell would first like to respond to Mr. Harvey's question.

I want to respond to the line of questioning from Ms. Catterall, where she raises a couple of interesting issues—namely, when is a campaign finished, and when do we have that time for sober second thought to go into the polls?

I don't think it would be a surprise to anybody on this committee to realize that Ms. Catterall herself is a ferocious campaigner and would take advantage of that Sunday leading up to election day and in fact would, arguably, send troops, as many of you would, out onto the streets to try to pull that vote on election day itself.

When does the campaign end? Officially, it ends 100 yards outside the polling booth, where no signs are to be posted, no pamphlets are to be given out. But if we find an arbitrary stop point to a campaign for polls or for other matters of communication, do we then have to look at some type of arbitrary stop for editorials in newspapers? Do we have to look at some type of stop to the actual, physical campaigning itself?

It becomes almost a slippery edge of the wedge. At what point—that 29-day period, say, or 36-day period—does the campaign finish?

To answer your point specifically—that is, should we be able to publish polls, and how can we publish polls and you not run ads—I think the point to our submission is that if there is no moratorium, there should be no moratorium on running ads or the publishing of polls.

The Chair: Okay.

Unless there's some point of personal privilege, Ms. Catterall, we'll—

Ms. Marlene Catterall: It's not a point of personal privilege—

The Chair: No, I'm joking.

Ms. Marlene Catterall: —but the answer, in fact, is in the act itself: When are your broadcast members free from the obligation to provide free time to political parties?

Mr. David Goldstein: I believe the issue we're addressing—

Ms. Marlene Catterall: It's 48 hours ahead of time. There's your arbitrary deadline.

The Chair: Thank you.

I'm now going to leave a question for which I'm not going to ask an answer. It's conceptual. You've been searching for reasons as to why there should be a blackout, and I'm going to suggest one. I don't need an answer, but colleagues may wish to take it up.

I'm going to call this the “sucker punch” concept. Whether it be a poll or whether it be some other piece of information inserted by way of advertising into a campaign, clause 91 of the bill contains a prohibition on publication that:

with the intention of affecting the results of an election, make or publish any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate.

So there is a prohibition inserted, and there's an injunction procedure that the Chief Electoral Officer has access to—namely, to provide some measure of order in the horse race. What we're looking at here is a horse race of political horses. The decision is not which horse crosses the finish line first; the decision is made by all the people in the stands watching the horse race. What we're trying to do, and what we think we have an obligation to do, is to keep order in the horse race, including not letting the system be warped by strange things going on in the stands, where all of the judges are.

• 1645

What is most important, then, is the horse race, not what's going on in the stands, and that is our focus. I suggest to you that one of the reasons we have a blackout, and rules, in this case 48 hours, is to prevent the sucker punch, the false poll purchased somewhere in the election, by some participant, a third party or a candidate, or something false printed by way of advertising in the final 48 hours.

By putting a blackout in there, we reduce the risk that there would be a warping of the process and would provide parties, or the Chief Electoral Officer or anybody else, an opportunity to address these things before polling day.

I'm going to leave that out there as one reason we need a blackout. If you want to piggyback your answer onto some other question, you may do that.

I have to recognize Mr. Bergeron, and then I have to recognize Mr. White again.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Mr. Chairman, great minds think alike because I intended to ask that very same question. I was a little surprised to hear Mr. Harvey say that basically ideas and candidates don't really count because the main issue is leadership.

I don't mean to be presumptuous, but I don't think we can trivialize or play down the importance of ideas and the candidates themselves. If everything depended on the leader, I think it would augur badly for the upcoming election.

However, let me now ask my question.

Mr. André Harvey: Mr. Chairman, I want to clarify what I said. I just listed the factors affecting an election campaign by their relative weight. My friend Stéphane is very aware of this reality. He might think back to 1993, when Mr. Bouchard played a very important leadership role. It's been statistically proven that 90 to 95% of votes depend on who is leading an election campaign. Thank you.

Mr. Stéphane Bergeron: If you'll allow me, Mr. Chairman, I will continue.

I'm always a little surprised that some people, in opposing poll blackouts, still can't prove that the blackout is actually useful. It's all very well to say that we want to protect candidates from last minute misinformation campaigns against which they will not have time to defend themselves, it's all very well to say that some dailies don't publish on Sunday and that they are at a competitive disadvantage compared with those that do; it's all very well to say that it is important that voters, after being bombarded with information for 36 hours, have the right to a 48-hour “quiet period” to digest all this information in order to make an enlightened choice, but all these arguments do not seem to convince a certain number of parties, including the Canadian Newspaper Association and the Canadian Association of Broadcasters, that a blackout is indeed a good idea.

However, they want us to arbitrarily stop blacking out polls even if they cannot prove the relevance of the poll, since they readily admit that a poll does not affect the vote. If a poll really does not affect the vote, why would the Canadian Newspaper Association or the Association of Canadian Broadcasters want to make one public hours before the vote?

[English]

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: If I may, Mr. Chairman, I will respond first to the question you posed.

I can't speak for broadcasters, but newspapers routinely decline to publish, at the end of a campaign, information that in their view is completely improper. In my career, I know I have killed ads that were to appear on the day of or before an election, precisely on the basis that they raised new and scandalous suggestions that no one would have an opportunity to respond to. There is complete identity of interest at that level.

• 1650

Where we have difficulty with a ban is where the state goes a step farther and says, we don't trust you to make those judgments. We don't trust you to be reasonable. We are going to tell you from on high that you can't publish any of this.

But I can assure you that I have killed ads for exactly the reason you are concerned.

I'd like to speak briefly to the point raised by Mr. Bergeron. It is not our position that polls have no impact. It is our position—and it was our position throughout the litigation—that there are quite a few different impacts, but as best we can determine they appear to cancel each other out in their effect. It is our position that polls do not necessarily influence in any one way. There are five or six different effects. So we would not take the position that it has no impact.

It is very clear to us that our readers are most interested in polls, especially those who wish to vote strategically. The best possible example would arise not in the context of the Canada Elections Act but in the context of a referendum, where you can believe that our readers are desperately interested in knowing who's ahead and who's behind and why and in getting a different sense about it.

So, yes, we are interested and, yes, they have an impact, but we don't find it possible to measure exactly what that impact is.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman...

[English]

The Chair: Mr. Bergeron, we just went over the five-minute mark.

[Translation]

Mr. Stéphane Bergeron: Very well. That's fine.

[English]

The Chair: If we have a new custom of getting only one question out, we'll go around the table quickly. Next is Mr. White, followed by Mr. Harvey, and Ms. Parrish has a question, too.

Mr. Ted White: Mr. Chairman, I'd like to think we were making rules for a talent quest rather than a horse race, but that's beside the point.

Ms. Parrish and Ms. Catterall raised an issue in terms of candidate rights. I think what the discussions around this bill have brought front and centre is that this bill affects a lot of people, a lot of organizations, and a lot of interests. My sense of it is that there wasn't a lot of government consultation or close enough consultation with affected groups.

For example, there's the third-party issue that was brought up by Ms. Parrish. She said, why should I have restrictions on me? I believe that's the way we're going. Because the government is reimposing what the public is calling a gag law, it will be challenged and it will be struck down. The next obvious thing is for maybe Ms. Parrish to go to the court and say, it's also unfair to me, and that will be struck down.

In my opinion it would have been better for the government to go directly to the groups involved and try to come to some accommodation. Where can we find some common ground where we can work together on the rules for this talent quest?

So with that in mind, I'm going to ask each of you as organizations whether you are aware of any approach by the government directly to your organizations to try to reach an accommodation on this very important case that went through with Southam in order to reach some common ground that could be included in these rules.

Mr. Blair Mackenzie: The answer is no, there were no formal overtures to our association. We do wish to thank Minister Boudria who, when we sought a meeting, agreed briefly to a breakfast meeting. But that was the extent of the consultation.

Mr. Ted White: If I can just add a supplementary to that—and I would like to go right along the row there—do you think it would have been possible for you to give a little ground and to have a negotiation that might have found some place where everyone would be happy?

Mr. Blair Mackenzie: We were involved, for example, in extensive consultations over legislation to protect data privacy. We came to any number of meetings and were happy to work out an accommodation. Of course, if an opportunity were offered to discuss this in another setting, I am confident—and, Anne, I think you would agree—

Ms. Anne Kothawala: Absolutely.

Mr. Blair Mackenzie: —that we would certainly be there.

Mr. Ted White: Mr. Doody, Mr. Goldstein, or Ms. Rathwell.

Mr. David Goldstein: We would concur.

Mr. Ted White: Okay. Thank you very much.

The Chair: Mr. Harvey.

[Translation]

Mr. André Harvey: Mr. Mackenzie, can you tell us why the government's bill should regulate polls and third party expenses since these issues are not relevant and they are tantamount to regulating nothing? Can you rationalize this or give us a single reason why it should be done, when it could lead to court battles?

• 1655

[English]

Mr. Blair Mackenzie: If I've understood the question correctly relative at least to the ban on the publication of opinion polls, I'd like to speak to that, if I may. We really do not understand why the government has sought in Bill C-2 to enter this territory that we thought the Supreme Court of Canada had so thoroughly dealt with and to reintroduce a ban where we would have thought it was perfectly clear there was no evidence to support one.

With regard to third-party advertising, may I simply say perhaps on a more personal level that I have a great deal of sympathy for those who are charged with the responsibility for coming up with some regime for dealing with this. I cannot say that I came here this afternoon with answers as to what it should be. But we do have a position, and it's simply as we've stated it, which is that it does appear to us that the $150,000 limit is too low. But let me be very clear that this is not an easy matter, not an easy matter at all. I have considerable sympathy for those who are trying to come to grips with it.

The Chair: Ms. Parrish.

Ms. Carolyn Parrish: Thank you.

Your evidence of killing ads, which you gave to Mr. Lee, demonstrates it perfectly for me. I understand you have integrity, but I'm getting to the point where I'm starting to believe the media creates the news instead of reports the news. It's a fine line. Some other media people might not have as much integrity as you do.

So the fact that you have to kill really bad ads at the end and the fact that in 1993 I was almost subject to an ad that was really awful just reinforce my belief that that 48-hour blackout is absolutely necessary.

The other thing is that in the last 48 hours there's an elevated awareness. I think the voters just cruise along and glance through the paper, but in the last 48 hours it has built itself to the fact that you have an elevated awareness. So it has far more impact.

The impact I'm thinking of is where you have a couple in a house and two voters are being dragged out, with one being not so willing. At the last second that person will say he doesn't know who to vote for, but the wife is very keen. I think the polls, the information we hang on their doors, and the stickers we put on their mail boxes can influence him, and he's going out the door saying, I guess I'll vote for that one, or, gee, the National Post said that the Tories are going to win, so I'm going to vote for the winning team.

You asked me for evidence as to why this barrage of information is no good. You look at the voter turnout over the last 15 years during which the media has become far more sophisticated and far more in your face. Every way you look there are media coming at you. The voter turnout is going lower and lower. It is not just because they're burned out. If you give them a poll at the eleventh hour saying the Tories are winning in a sweep, why bother voting? So I think that's evidence.

My last point is that I think you guys want to publish polls on the last day because it is the competitive olympics of reporting. Each one wants to be the one that gets the poll that is closest to the results on the last day. So it is a very competitive thing. You're smiling. I really believe that in your heart of hearts that's half the reason you guys want to publish on the last day. All the publishers put their money on who gets the best poll in the end.

There is, as you've demonstrated, only damage from them, including lower voter turnout and less informed voting, because that last minute elevated awareness of reluctant voters, such as my husband, dragging him out—no, he votes willingly. He likes me to be away from home—

A voice: And he votes for you.

Ms. Carolyn Parrish: And he votes for me every time. But I think that in the end the more I listen to everybody, the more I realize you're doing the right thing here. Thank you.

Mr. Michael Doody: I think what really underlies this publication ban is a distrust of the voter. You're saying, this voter is just too dumb to get it.

Ms. Carolyn Parrish: No, absolutely not. The voters who have listened for four years know who they're voting for when they go out to vote. All the advertising in the world is a waste of time.

I disagree with Mr. Harvey when he says that everybody votes for the leader. When you have a very close race and a low voter turnout, that 5% makes a huge difference. I don't want you guys publishing a poll in my riding in the last hour—

Ms. Marlene Catterall: That you can't respond to.

Ms. Carolyn Parrish: —that tells my supporters, don't bother going out because she's losing anyway—

Ms. Marlene Catterall: Or she's winning by a landslide.

Ms. Carolyn Parrish: —or she's winning by a landslide so don't bother. I've lost an election that way.

Mr. Michael Doody: It's just one of the pieces of information that's out there—

Ms. Carolyn Parrish: I know, and there's too much—

Mr. Michael Doody: —and we have basically a pretty smart electorate that is able to look at all these difference sources and pieces and assess them.

Ms. Carolyn Parrish: That's why we've had a Liberal government after the last two elections—

Mr. Michael Doody: I won't go down that road.

Ms. Carolyn Parrish: —and we've been campaigning every day. You don't campaign exclusively in the last 30 days, or you'd lose. Look what happened to Mr. Mulroney. He had more money, more paper, more ink, more television space, and he got two people elected—two.

• 1700

Mr. Michael Doody: Well, we're just saying we don't think you should hide information from the voters.

Ms. Carolyn Parrish: We're not. We're just soothing—

Mr. Michael Doody: Just in the last two days.

Ms. Carolyn Parrish: Okay.

The Chair: Of course it's my understanding that the statute doesn't prevent newspapers from publishing information. There's no gag on information or editorials. There is a restriction on advertising and polling. So it's unfair to characterize it as a complete blackout. It's not at all. It's only—

Mr. Michael Doody: I wasn't doing that.

Ms. Anne Kothawala: But if I could just add to that, it is our view that polls are information. To follow on Monsieur Bergeron's question earlier—“Well, why do you want to publish these things if it's proven that they have no value?”—the real issue is that we as newspapers are just gatherers and disseminators of information, and to the extent that polls are information, we want to be able to disseminate that information. That is our role in a democratic society.

We're not speaking to the usefulness of them. Whether they're useful or not, they're information that we would like to continue to disseminate to our readers. Anything that stops us from doing that runs contrary to our role in a democratic society.

The Chair: Mr. Mackenzie.

Mr. Blair Mackenzie: Thank you. I simply wish to respond to the suggestion made by Ms. Parrish that it is, in whole or in part, however you want to characterize it, the fault, if you like, of newspapers that voter turnout is low. That is a really novel proposition to me.

Ms. Carolyn Parrish: I believe it.

Mr. Blair Mackenzie: I respect that, but I would love to see something more than that assertion.

Ms. Carolyn Parrish: It's my gut instinct.

Mr. Blair Mackenzie: Somehow I would like something more than that gut instinct, and if there is serious evidence there, you will have our complete attention.

The Chair: I think we have three more questions. Mr. Bergeron has one and Mr. Richardson has indicated that he has one. Did you have one, Mr. White?

Mr. Ted White: No.

The Chair: Okay, it's just Mr. Bergeron and Mr. Richardson.

Mr. Ted White: I agree with everything the witnesses are saying. I don't need to ask any more questions.

The Chair: Okay.

Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, I would like to come back to the question I raised earlier. I'm always astounded when people fall back on court rulings regarding third party spending limits and the publication of polls. Some people fall back on legal decisions until they drop to justify the fact that there should not be a cap on third party spending or that these caps be raised. The same thing is done to justify the argument that there should be no publication ban in the 48 hours preceding an election.

However, if you carefully read the decisions handed down by the courts on these two issues, you'll see that the courts have said that, yes, it may be justified to limit these rights, but that the decision to do so must be justified, even if it may be a little excessive. In both cases, we recognize the government's argument for imposing a spending cap.

Regarding third party expenses, it goes much further. It says that there should indeed be a third party spending threshold and that this threshold should be lower than the one for political parties. Mr. White keeps on repeating that the courts have said that there should be no such third party spending threshold. I think that Mr. White is dangerously playing with the truth. Of course, the old Elections Act was too restrictive, but the courts have recognized that there should indeed be a third party spending limit and that this limit should be below the one for political parties.

• 1705

That being said, I would like to come back to what was said earlier regarding the question I asked. I simply wanted to draw a comparison between the fact that you are asking members of Parliament to justify a publication ban. I'm asking the opposite. If the only answer you can come up with is to say: “We are providers of information and we must have complete freedom to do so any time, anywhere”, I would answer that we, for our part, have the duty to protect the public interest. Many arguments have been raised to defend this position and I repeated them earlier. You did not seem to be happy with those answers, but in our view, in our capacity as lawmakers, these arguments are so important that there must be a publication ban.

That was more of a comment on our discussion rather than a specific question, but perhaps you may wish to respond.

[English]

Mr. Michael Doody: You have asked us to provide a justification for why you should not enact the publication ban. That's actually the reverse of the way it should work. What the Supreme Court has said is that everyone in Canada has the right to express themselves and to produce information. It's freedom of expression. It's a constitutionally guaranteed right.

Indeed it's up to the government to show why they are justified in placing restrictions on that right, because we know from the Supreme Court that it's wrong to restrict that right unless you have an overwhelming reason to do so. Government was not able to come up with anything last time, and to our knowledge, Minister Boudria has basically said the situation is no different now. So the onus is really on the government to say why they should restrict Canadians' constitutional rights.

The Chair: I hope those reasons can be articulated by Parliament, and then the government lawyers can re-articulate those, if called upon, at another time. When you mentioned government, I assume you were talking about Parliament.

Mr. Michael Doody: I would have thought that when Parliament is considering whether to place restrictions on rights, it would consider whether or not there's a sufficient justification to do so.

The Chair: Oh, yes, for sure.

Mr. Michael Doody: Well, they did not last time.

The Chair: We try to make sure every one of our statutes is charter-compliant and constitutionally precise and acceptable. For sure we do that. Thank you for reminding us about that.

Mr. Michael Doody: Well, that was not the case last time, Chairman Lee. I know you have sort of expressed the opinion that the Supreme Court decision is somewhat irrelevant, but we're just here to say it's not.

The Chair: I've never used the word “irrelevant”. We enjoy the guidance offered by the courts, but at the end of the day, the court of Parliament has to make its decision about the legislation, and we make every effort to do it in compliance with the Constitution and our role here.

Mr. Michael Doody: We certainly respect Parliament's role.

The Chair: Okay.

Mr. Richardson, you had a question.

Mr. John Richardson (Perth—Middlesex, Lib.): Thanks, Mr. Chair.

I'd like to revisit a topic that was on the table earlier that I didn't feel received the kind of debate it probably warrants, and that is the potential for those people who are receiving a smaller grant than $150,000, and who are like-minded or have a common cause, to pool moneys together to attack in large numbers, in volumes of dollars, to make their case.

The cause might be religious-based, as we have seen in past elections with religious groups that have common values; let's put it that way. They could seek to use a negative and say, “Don't vote for so-and-so”, or they could go positive and say, “Vote for so-and-so”. Sometimes it's just a sheet of paper that's delivered to the door. Sometimes it's newspaper advertisements identifying a certain party to be ignored or not voted for or supported.

It seems to me that somehow, in a democratic society, those people who neither have funds nor work from day to day, but appear on election day, with the support, by the way, of how we operate.... I think probably the day will come when some major issue will arise where third-party people will be spending more than all the parties will be.

• 1710

Let's take an even smaller example. Last time, firearms people were running around saying, “Don't vote for X and don't vote for Y”, with a list of people they felt were or were not their supporters. They used their money that way. We could go on with others, potentially.

I have a tough time, as a democrat, believing that method is a fair way to go. When parties are spending money, you know who they are and what they are, and they have to earn their way up. The others come in clean and fresh with just money, and some values that are perhaps different, or points of view that are different, and they want them to be addressed in an effective manner.

So I still think we have a long way to go in terms of handling that issue.

The Chair: Would any of the witnesses like to comment on that?

Mr. Richardson, you were making a statement in connection with limitations on third-party spending.

Mr. John Richardson: Third-party intervention, yes.

The Chair: Not on third-party interventions per se but on the limitations.

Mr. John Richardson: That's right.

The Chair: All right.

I want to thank our witnesses. You have provided us with some very important perspectives on some very important clauses in the bill. The issues you've raised with us have had discussion formally in the House and among members of Parliament, and they will continue to be discussed in all the ways they are around here. Your interventions have been very helpful in providing focus to members of the committee on those important issues, all of which are charter-based and important to Canadians.

Again, thank you for your interventions.

Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron: I simply want to clarify something for Mr. Mackenzie. When I listened to the presentation, and correct me if I'm wrong, I felt that the witnesses were arguing that when the publication ban comes into effect, voters have already made up their minds. That's why I surmised that, in your opinion, they would not have any impact.

Therefore, if I understood correctly, the poll would not affect a voter's choice, except perhaps for a few voters who may wish to vote strategically. The few undecided voters left 48 hours before the election might want to wait before they decide in order to vote for the winner or God knows what. But, generally speaking, I think you said that within 48 hours of the election, most people will have decided whom to vote for.

[English]

Mr. Blair Mackenzie: With respect, Mr. Chairman, I don't think the suggestion came from us that within 48 hours of the election everybody had made their mind up. As I recall, Mr. Harvey may have said that. Forgive me if I am incorrect there.

We're saying that the publication of opinion polls clearly has some effects throughout the campaign. We are simply saying that as far as we can tell, they seem to cancel themselves all out. But I don't think we're in a position to say that 48 hours before the election everybody has made up their mind. I don't think we're in a position to say that at all.

Mr. Stéphane Bergeron: I didn't say “everybody”.

Mr. Blair Mackenzie: Fair enough.

The Chair: That's great.

I hate to give the final word, but I can't resist.

To the extent that polls—and there may be agreement around the table—do influence in the final stages of a campaign, the polls are only influencing a very small margin of the voters; very small. But I think it's fair to say that at the end of the campaign, it is the very small margin of voters who may in fact make the difference in a local race.

• 1715

I don't want to impose that as the last word, so if any of the witnesses differ with my characterization of those final days, you may wish to say that now.

If not, I'll give the last word to Mr. Solomon and we can adjourn.

Mr. John Solomon: I have one other question I wouldn't mind you contemplating, and that is in reference to, again, the publishing of polls.

If we were to lift the ban on publishing of polls, would you agree that we would have to lift the ban on the time zone delay of announcing the results of the ultimate poll on election day? For instance, in western Canada right now we don't know what's happening in eastern Canada until our polls close. There's a media blackout.

Do you favour removal of that blackout as well for the ultimate poll, which is actually the best poll?

Mr. Blair Mackenzie: We don't really understand why you would wish to prohibit the publication of the results of, as you say, the ultimate poll, the final and binding poll, because on a time zone basis, that seems to us to make a good deal of sense.

Mr. John Solomon: Why? That's the accurate poll. There's no rogue polling. That's exactly what's happening. The rogue poll question might arise, however, if it's published by a certain group or individual in advance.

Mr. Michael Doody: We think the election result is qualitatively different from opinion polls conducted during the campaign.

Mr. John Solomon: Sure, but if it doesn't sway polls in the newspapers the day before, why would it sway the end results?

Mr. Michael Doody: We have not said it does not sway.

Mr. John Solomon: Well, does it?

Mr. Michael Doody: We've said that it's a piece of information that voters are entitled to know and that we're entitled to speak.

Mr. John Solomon: But aren't they entitled to know on election day? If I'm in Saskatchewan voting at 8.30 p.m. Saskatchewan time, which is midnight Newfoundland time, why can't I know four or five hours earlier, when their polls close, how they voted?

Mr. Michael Doody: We think it's qualitatively different.

The Chair: Because this involves broadcasting more than newspapers, perhaps Ms. Rathwell would care to comment.

Ms. Cynthia Rathwell: Thank you, yes.

The broadcasters don't oppose the restriction on the publication of actual results, but I think there's an important difference in keeping that withheld until the close of polls in any given area—namely, you want the voters across the country to understand that they have a legitimate voice in the election of their representatives.

You know, we've heard complaints for many years that provinces west of Ontario don't have sufficient impact because everything is decided by the time the polls close in their districts. I think to the extent the restriction on publication of actual results was lifted, that would just aggravate that problem. It is important for voters across the country to have a sense that their vote is valuable.

The Chair: The last word has gone to Ms. Rathwell.

Thank you again for coming.

We are adjourned.