Skip to main content
EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 30, 1995

.1114

[English]

The Chairman: The purpose of today's meeting is to try to arrange how we'd like to proceed as a subcommittee. There are a couple of places where members may want to look for ideas, and maybe our researcher can have a look at this and come back to us in a timeframe, which we can decide on.

First of all, in respect of this bill, there were debates particularly in committee. The Special Committee on Electoral Reform was the committee that received this bill for committee scrutiny when the Referendum Act was originally introduced in Parliament approximately three years ago. It was chaired at the time by the chief government whip. There was fairly lively discussion, and it was packed. We did it in two or three days, as I recall, and fairly lengthy days, because there was some rush to get the bill through.

.1115

It might be worth looking at the amendments or at least the arguments that were put forward in respect of various clauses of the bill to see which ones were questioned at the time. It might give us some indication of whether the questions that were raised in fact created some valid concern or were maybe the subject of some comment from the Chief Electoral Officer, based on the experience of having gone through the referendum on the Charlottetown Accord. It's the only experience we've had under this act. It might be helpful to committee members to know what those were.

Second, the Chief Electoral Officer prepared a report on the referendum, which is available to members. I certainly have a copy. It's probably out of print.

Well, it wouldn't be out of print. You would have copies, Mr. Kingsley.

Mr. Jean-Pierre Kingsley (Chief Electoral Officer of Canada): We have copies, yes.

The Chairman: I read it, but I read it some time ago. My recollection is it doesn't have a lot of detailed criticism of the act in it. It's more a description of what happened. But again, if some problem concerning the legislation is raised in that report, perhaps we can have a summary of that.

If members would like a copy, perhaps they can approach Mr. Kingsley after the meeting and ask him. It's a thick book, but it's big print, so it doesn't take a long time to read.

Mr. Kingsley: You only need to read half of it, sir.

The Chairman: Yes, because the other half is in the other language.

Mr. Kingsley: That's right.

The Chairman: The other thing I thought might be helpful is to receive from Mr. Girard,Ms MacManus or the Chief Electoral Officer, or all three of you, your views on any problems you've encountered in the one experience we've had with this act and whether there are any changes you would recommend to committee.

Fourth, it might be worth getting the Chief Electoral Officer of Quebec to come and talk about the recent referendum experience in that province to see if he has any suggestions as to pitfalls we might want to avoid or ideas we might want to look at in respect of this act. I'm sure he'll be a fount of knowledge, or at least a fount of opinion, on this subject. I don't know whether the committee is interested in doing that as part of this work or not. We could go that far afield.

The fifth item is whether the committee is interested in putting any kind of notice to the public as to views on the Referendum Act, to invite public participation in our review. If so, how should we do it? Should we spend money doing it or put an announcement on the parliamentary channel? Or are there some experts whom members of the committee feel we should hear from on this issue, who might be called as witnesses? I'm open to suggestions and would be glad to hear your comments and ideas.

Mr. Ringma (Nanaimo - Cowichan): I'd like to start with a straightforward question. What is the aim of this subcommittee?

The Chairman: It is to complete a statutory review, as required by the law, of this act. If we have recommendations for change, we're entitled to do that.

If you look at the document prepared by Mr. Robertson, dated yesterday, section 40 of the act says:

Mr. Ringma: Okay. Thank you.

The reason I ask that, Peter, to be very upfront, is the Reform Party, as I think everyone is aware, is quite interested in the referendum and in going to the people and asking their opinions. I have a personal interest in it as well.

Therefore my aim is to see what we can do, with the agreement of Parliament, to further encourage, where practical, the use of referenda. That is my aim within this committee. Fine, if we have to statutorily review the act, good, let's do that review. But I will be looking for openings to ask what we can do to improve and enhance the whole referendum process.

.1120

[Translation]

Mr. Langlois (Bellechasse): Does our mandate allow us to examine referendums held as a result of popular initiatives and referendums on matters that do not pertain to the Constitution?

The Chair: Yes. There are not restrictions in the Referendum Act. I believe the matter is decided by the Governor in Council and it has to be adopted by the House of Commons before the referendum is held. I forget the section number.

Mr. Langlois: The referendum could be purely regulatory.

Mr. Jacques Girard (Director, Legal Services, Elections Canada): Section 3 limits consultation to constitutional matters.

The Chair: That's true.

Mr. Langlois: I was not a member of Parliament at the time, but I was better informed then than I am today.

The Chair: Can we examine this matter?

Mr. Langlois: Yes.

The Chair: Mr. Robertson has prepared a list of possible witnesses. Obviously, Mr. Kingsley will be one of these witnesses. We could examine the special election rules that apply to the Department of National Defense. When we examined the Elections Act, we gave some thought to changing these rules to allow members of the Armed Forces to vote at the same time as the other voters, with the exception of those who are not in Canada at the time of the election.

We could hear from chief electoral officers in provinces where elections have been held.Mr. Boyer, the former member from Etobicoke - Lakeshore, has published several books on the subject and no doubt he would like to... He is the one who first came up with the idea for this bill and he was a member of the committee that examined Bill C-81.

[English]

We didn't have many witnesses on this bill at the time of its original study, because we were in a scramble to get it through. I think we had one day of witnesses, if I'm not mistaken, and then two or three days of clause-by-clause, if that. It might have been one or two days. I remember we spent a lot of time on it, but that's all.

[Translation]

Mr. Langlois: I think that it would be important to hear someone from Queen's University.

The Chair: I'm not aware of any referendum expert who come from Queen's University.

Mr. Langlois: I think that Mr. Franks could provide us with some interesting comments of a general nature on this matter, which would give your students an opportunity to evaluate your work and to vote for you at the next election, as usual.

The Chair: He is here today, appearing before the Subcommittee on Supply. We don't have to have him appear before every committee.

[English]

It sounds as though there were two witnesses, Mr. Kingsley and Mr. Cameron, and a total of three days on the bill. I remember we had a lot of objections at the time. Whether we'd have the same objections now I don't know.

.1125

When would you like to start? Would you like to carry this through right away or do you want to wait until February and organize a presentation from the Chief Electoral Officer, organize a few witnesses and have Mr. Robertson do some studies during that time? We could tackle it in February. Do members feel some pressing need to get on it right away?

Mr. Ringma: It would be my inclination to leave it to February, partly because I'm coming from behind on the thing. I've done no reading to speak of. I am interested in it, but....

The Chairman: Frankly, none of us have. Sure, I went through the referendum experience and I read the report, but that was some time ago, before the election sort of thing.

[Translation]

Have you any priorities on this matter, Mr. Langlois?

Mr. Langlois: I have listed two, holding a referendum as a result of popular initiatives and holding referendums on issues that do not pertain to the Constitution.

As for the act itself, I would like to compare it to the Quebec legislation, which establishes state-funded umbrella committees and which limits spending. In 1992, we had a real free-for-all, with expenditures for the Yes side, which was supported by most governments, being 13 times higher than that of the No side. This made things somewhat disproportionate, despite the situation, the outcome did not vary significantly, however...

The Chair: Consequently, you would be interested in studying this matter immediately.

Mr. Langlois: No. We could begin our study in February as opposed to December. At any rate, when we come back we're going to have to be reminded about what we said in December.

The Chair: Very well.

Mr. Langlois: Our permanent memory, mainly, the staff at Elections Canada, will recall what was said. We, on the other hand, are just passing through Ottawa.

The Chair: When Bill C-81 was before the committee, we discussed the possibility of limiting spending, both for the Yes side and the No side. Perhaps we could discuss this matter another time. It will be less interesting, but useful just the same.

[English]

Alors, I think we will leave this until February to give time to our researchers and to give time to Mr. Kingsley to do the leg work in preparing for something.

We come back on February 5, so perhaps we could start on Thursday, February 8. We could maybe get underway by hearing a few witnesses. With informal discussion perhaps we could agree on a few other witnesses who might be interested in coming. The clerk could talk to some of these people and we could line them up for February and March. Then maybe in April we could have discussions as to any changes we might want to make to the act or recommend for the act and do a report.

Mr. Kingsley with your views and your experience with the referendum I think you should be our first witness. I know you appeared before this committee on this issue once after the referendum, but I think that was before the election so the members of this group will not have heard your testimony. I think you came and talked about the referendum experience.

Mr. Kingsley: Right, but we have things to say other than what is in the report in terms of evaluating the legislation and evaluating its functioning.

As well, we will have had an opportunity to consider several other aspects we think the committee will be interested in. If there are questions that.... I know that the last time I appeared here - on Tuesday as a matter of fact - Mr. Ringma did raise questions and so did another member of Parliament from the Reform Party. We will attempt to answer those questions at that time.

The Chairman: Sure.

Mr. Kingsley: Also, we're in the throes of considering, with all of the things coming together at Elections Canada, referendum legislation, the register of electors project and other amendments to the Elections Act.... All of this coming together leads us to an opportunity to review one of the points that is raised in here, and that is the power of the Chief Electoral Officer to adapt legislation.

.1130

We will want to consider having something in the law that would be common to both elections and referendums, where any change to any statute would result in an automatic change to that and not in a requirement for me to re-adapt the elections act for purposes of the referendum.

This occurred initially because of the time constraints that were imposed. I think it's important but it's a convoluted issue. It's not one that's easy to resolve, but there are ways of resolving it. So I want to have an opportunity to broach that with you. It will take us beyond strictly the workings of the Referendum Act into some of the broadcasting provisions, which I think are unique in Canada. They cannot exist at the provincial level. They created a bit of a level playing field in terms of access to free broadcasting during prime time by the yes and the no committees. I think people will be interested in hearing that.

If there are other questions members of the committee would like us to address I would appreciate hearing from them, if possible, before Christmas, because we're going to utilize the time from here until February to prepare my presentation to the committee.

The Chairman: What is true about this whole situation is that this act and the Canada Elections Act are very closely tied together. Members will notice that the Referendum Act is silent on the vast majority of issues concerning the running of a referendum. There are a few things that deal with the wording of the question, dates and so on, but the electoral law is adapted by regulation and applies to a referendum.

This was done to save time, because the government didn't have time to redraft the provisions of the Canada Elections Act into a bill, and it wasn't prepared to countenance having the committee add all the sections of the Elections Act to the bill. So the Referendum Act is very short, and there's a huge thick wad of regulations, which is done by the Chief Electoral Officer, as you know - we've been through that once as it was adapted - that embodies the words of the Canada Elections Act.

It's a question of how far we go. For example, we could get into the question of enumeration of electors and say we don't think it should be conducted that way. If we go into special voting rules and decide we should get rid of them, we're saying we're going to get rid of them for elections too. We could get into quite a wide open thing here.

I guess we'll have to decide as we go along how far we're prepared to go. Are we going to deal with just the act? That is technically what we're given to do, but the act contains a provision that says all the elections rules apply. Are we then going to look at those? I think in some cases we will, and the broadcasting provisions of the Canada Elections Act are a perfect example.

We could turn this into a fairly major study and in effect be looking at the Canada Elections Act on the way by. I'm not sure we want to go that far, but sooner or later we'll want to do that as a committee. Whether the subcommittee is the vehicle for that I'm not sure.

If anyone has suggestions and issues they want to raise with the Chief Electoral Officer, please feel free to communicate. You don't need to do it through me because we'll hear him on anything you want.

[Translation]

Mr. Langlois: Perhaps I'm going off topic somewhat, but there is a matter that I would like to raise. If the federal government were to call a referendum, could you use the voters lists that were prepared for the Quebec Referendum and that were recently prepared for Ontario's provincial elections? What would you do?

Mr. Kingsley: According to the current act, I would have to abide by the procedures stipulated in the federal act, namely, we would have to conduct a door-to-door enumeration. This is a topic that I wanted to bring to the attention of the entire committee during our one-hour presentation on December 14th.

We will be talking to you about the work we have done on the permanent voters list and you will see immediately that his has a direct impact on the act, not only as it relates to elections but also as it pertains to referendums.

Moreover, this may have an impact on the calendar, on the duration of each event. Everything is interconnected. Currently, the Chief Electoral Officer of Canada is not authorized to use a province's list even if it is only three weeks old, even if it is quite adequate.

.1135

This is the issue which we would like to discuss with all of the committee members on December 14th.

Mr. Langlois: Theoretically, Mr. Kingsley, if I've understood you correctly, if a federal referendum was held on the very same day as a provincial election in Ontario, the provincial enumerators would be followed by federal enumerators.

Mr. Kingsley: Theoretically, you are right. In Quebec, in 1992, the federal referendum and the provincial referendum took place at the same time, on the very same day. The referendums dealt with the same questions, everybody went door-to-door and, fortunately, there was no duplication.

In the case of the federal election of 1993, I used the federal list outside of Quebec because the event took place less than one year, to the day, after the 1992 referendum. That is as far as a discretionary power of the Chief Electoral Officer goes.

In Quebec, we had to go door-to-door because I was not authorized to use the Quebec list. And even if I had been given this authorization, these lists were not computerized.

Then, in 1994, a general election was held in Quebec, and we had to go door-to-door once again. Quebec opted not to use the 1993 general election list that I had put on computer.

Mr. Langlois: Did Mr. Côté have the discretionary power required to be able to use these lists?

Mr. Kingsley: I don't know. If, during the referendum, Quebec had had a computerized list which, in my opinion, appeared to be good, I could have asked the committee, and Parliament for permission to purchase the list from Quebec or, at the very least, to use it. But I couldn't even do that, because the list was not computerized.

Door-to-door enumeration was conducted in Quebec both for the general election of 1994 and the recent referendum. That means that, in Quebec, since 1992, there has been a door-to-door enumeration carried out every year.

When I appear before you on December 14, I will talk to you about how we intend to eliminate, once and for all, the practice of carrying out door-to-door enumeration in Canada, regardless of what the event may be.

[English]

The Chairman: What about advertising? Is it agreed we advertise on the parliamentary channel, saying we're starting our study on the Referendum Act and public input is invited?

Mr. Ringma: Why not?

The Chairman: Agreed?

Mr. Ringma: Yes.

Mr. Langlois: Oui.

The Chairman: Good, and if members feel we have to do something else, we can do more later. I don't think we do, but....

[Translation]

Mr. Langlois: We could perhaps add the name of the chief electoral officer for the province of Newfoundland and Labrador to the list of possible witnesses. This province held a referendum on September 5th, I believe, regarding term 17 of Newfoundland's union with Canada.

The Chair: An excellent idea.

Mr. Langlois: Perhaps we could study the 1948 outcome, when eight ridings voted in excess of 100%, something which is quite exceptional in Canadian history.

The Chair: During our meeting in February, we could perhaps decide on a budget to cover travel expenditures for some of our witnesses.

[English]

I think that completes our business for today.

I have a question for you, Mr. Kingsley. Did you receive the report of the Standing Committee on Procedure and House Affairs from Mr. Speaker yesterday in respect of the electoral boundaries?

Mr. Kingsley: I received it this morning.

The Chairman: Oh, good.

Mr. Kingsley: I will be expediting it to the judges as soon as I go back. I was caught between two meetings and I did not have time to sign the letter.

The Chairman: Will it be sent today? Will the 30 days start to run today?

Mr. Kingsley: That's right.

The Chairman: So on December 30 we can expect new maps.

Mr. Kingsley: We will have final reports that will establish final maps under the present statute. After that, just to remind the committee members, there will be a need for a proclamation order. It requires that I write to the President of the Privy Council and that he subsequently, within five days, issue a proclamation order. It is from that date that the one-year clock starts to tick, before the new ridings take effect for any electoral event.

.1140

The Chairman: When would you expect to send that letter?

Mr. Kingsley: I would expect to be able to do it within a few days at the most, so I'm looking at January 1 or 2.

The Chairman: That's when you expect to do the letter?

Mr. Kingsley: Yes, and I would expect that very shortly thereafter -

The Chairman: It would be five days thereafter.

Mr. Kingsley: - the Honourable Minister Mr. Gray will be issuing the proclamation order.

[Translation]

Mr. Langlois: As a result of the 50 to 48 vote in the Senate, pertaining to the request that the Senate Committee on Legal and Constitutional Affairs reported immediately, have you decided not to report to the Health so that it may in turn submit a formal request to the House?

The Chair: Personally, I haven't precluded anything.

Mr. Langlois: That is not what we hear in the hallway.

The Chair: Rumours, sir, they are only rumours.

Mr. Langlois: Yes, I know that they are rumours, however, we are going to adjourn by the 15th at the latest.

The Chair: I indicated that it would be difficult to get the bill adopted by the Senate. We lost a vote there. So what can we do about it?

Mr. Langlois: We could perhaps report to the House requesting...

The Chair: Perhaps. Perhaps we can discuss this on Tuesday.

Mr. Langlois: Yes, Tuesday.

The Chair: I received a letter from Mr. McWhinney who wishes to address the committee on this topic next Tuesday. The letter is now with the clerk who will get it translated. No doubt we will have the letter by Tuesday.

Mr. Langlois: Perhaps you could ask the Liberal senators to be present in the other House. Were it not for the absence of three Liberal senators, the vote would have been 51 to 50.

The Chair: That is obvious. Two, I believe, the Speaker of the Senate did not vote.

Mr Langlois: That makes it even worse.

The Chair: It's too bad.

Mr. Langlois: I will be there on Tuesday.

The Chair: Thank you everyone. I hope that we can now adjourn.

Mr. Kingsley, do you have something else to add?

Mr. Kingsley: Mr. Chairman, we have received a few calls from members' offices requesting us to

[English]

what would happen if Bill C-69 were to pass as presently formulated, after the proclamation order comes into effect.

The Chairman: I thought you'd tell us.

Mr. Kingsley: That is why I raised the issue. I wish to tell you so that it's on the record.

What would happen is that the proclamation order would become null and void. That means there's no more waiting period and we're at the 295 seats, as presently constituted, until the new commissions that would be established under Bill C-69 come into effect and do their work and go through the 23 months of work before new ridings would come into effect. That is the practical effect of Bill C-69 as presently written, should it come to pass at any time, even after the proclamation order comes into play.

The Chairman: Maybe we should send a copy of this answer to the Senate. There seems to be some confusion in the minds of some of the Tory senators. They seem to think that once the proclamation is issued there's nothing Bill C-69 can do. As I suspected, they were wrong, but they've been consistently wrong throughout this piece, so nothing surprises me there.

[Translation]

Mr. Langlois: Mr. Kingsley - you do not have to answer me if you feel that this is a confidential matter - , are your legal advisors prepared to debate this matter before the courts if it is ever raised by people who hold a contrary opinion?

Mr. Kingsley: That would depend on the way that the legal challenge was worded. If it was based on the Charter, the Office of the Chief Electoral Officer would be only indirectly involved and would perhaps be called as a witness. It is the Attorney General and not the Chief Electoral Officer who must defend the interpretation of legislation in accordance with the Charter.

Mr. Langlois: Let us suppose, if there was no prorogation, that Bill C-69 was adopted as is, and that you decided to disregard the proclamation made following the provincial commission's report and that they wanted to use some procedure to compel you to abide by it. You would be forced to defend yourself at that time.

Mr. Kingsley: I will ask Mr. Girard to explain the situation to us.

.1145

Mr. Girard: This is a very technical issue, Mr. Langlois, but, generally speaking, since the commissions were established by the Governor in Council, it would be up to the Governor in Council to come to their assistance if ever they came under attack. It would be the Department of Justice rather than us who would be called upon to provide assistance in a scenario such as the one that you have just described, because the only link that we have with this matter in entirely administrative. We provide technical assistance, but the commissions are completely independent. Consequently, we have not been mandated to represent them before the court if ever they are prosecuted.

Mr. Kingsley: If someone, for example, wanted to challenge our interpretation whereby the work of previous commissions were to be disregarded. . . That would depend on the nature of the challenge. That is what would determine the nature of our intervention.

If someone were to try to challenge the Chief Electoral Officer, it could be up to us to defend our interpretation. We would do this. If, however, a decision made by the Chief Electoral Officer was being challenged before the court, the Chief Electoral Officer would defend himself. However, if this dispute were based on the Charter, the Attorney General would be responsible for the case.

I would like to add that this is what always happens, because most challenges are based on the Charter. We play a peripheral role. We step in only when we are called upon as witnesses or when we are consulted unofficially by the Attorney General, who is not bound by our opinion. This is really how things are done.

Mr. Langlois: If I may, before we adjourn, I would like to remind Mr. McWhinney, now that he is there, that I had requested that Bill C-69 on the readjustment of electoral boundaries be put on next Tuesday's agenda so that we can report to the House to allow it to put some political pressure on the Senate which, in my opinion, is holding up Bill C-69 unjustifiably. I don't think that we have to resort to using all of our legal pressures.

M. McWhinney (Vancouver Quadra): I am in complete agreement with you. I authorized our Chairman to distribute a letter that I had sent to him outlining the general constitutional basis of our complaint against the Senate.

In my opinion, it is essential that we fight the Senate on this matter. This is a breach of our constitutional authority, a breach of courtesy owed to the other House of Parliament.

The attitude displayed by the Senate and, more especially, some of the comments made in public by some senators disturbs me a great deal. This is a breach of the respect to which our Parliament, the elected House is entitled. It is unacceptable for a House that is not elected and that is constitutionally obsolete to want to impose its views on the way that we establish our elected House. This is unacceptable.

The Chair: We could have this discussion on Tuesday. Your letter is now in the hands of the translators. We will have it Tuesday morning.

Mr. Langlois: Thank you.

The Chair: Is that all, Mr. Kingsley?

Mr. Kingsley: I have a very technical question, Mr. Chairman. When do you want us to have our presentation ready so that you can begin your process?

The Chairman: February 8th.

Mr. Kingsley: February 8th. Thank you very much.

The Chair: We will begin to examine this issue on February 8th because we don't have enough time to do it now.

Mr. Kingsley: We will be there and we will be ready.

The Chair: Excellent. Thank you for your views.

.1150

[English]

[English]

I just wanted to pass on to each of the members that on Thursday, December 14, the committee is meeting informally with Mr. Kingsley at our regular meeting time of 11 a.m.

I'll declare the meeting adjourned.

Touchez ici pour accéder les témoignages

;