HAFF Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 22, 2001

• 1103

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, I'll call the meeting to order. We're continuing with our consideration of Bill C-9 to amend the Canada Elections Act.

We're pleased to have back with us Minister Boudria, and staff who have been involved in the putting together of this bill.

Minister Boudria, we asked you to come back. There were one or two members who did have additional questions, but we ran out of time the last time you were here. Thank you for coming back.

I assume you don't have an opening statement. You have said what you wanted to say, but if you do have something you'd like to state at the outset, please feel free to do that now.

Hon. Don Boudria (Leader of the Government in the House of Commons): Mr. Chairman, I do have a few clarifications and answers to questions raised at the last meeting. Perhaps it would assist members asking supplementary questions today if I respond to those initially.

The Chair: Please go ahead. That's fine.

[Translation]

Mr. Don Boudria: Thank you, Mr. Chairman, for allowing me to come back as a witness before this parliamentary committee.

As I said last time, there are two main changes to this bill. First, changes were of course made to take into account the Figueroa decision regarding the identification of political parties on ballots. Second, there are a few technical corrections, which I pointed out last time. The changes are mostly in response to the decision of the Court of Appeal in the Figueroa case.

• 1105

Mr. Chairman, we have to comply with the Court of Appeal decision regarding the identification of political parties on ballots. I know there are two schools of thought on the committee. Some want very few rules, others want even stricter rules. However, we have to comply with what the Court of Appeal said.

[English]

As I've previously mentioned, further discussions on the larger view of electoral issues, amendments to the Elections Act as opposed to amendments to this bill, are to be done in a different context.

Of course, we now have the report of the Chief Electoral Officer on the election—there's a copy of it here—and he's going to offer proposed legislative amendments later on this year. Then, of course, this committee will make recommendations to the government and to me as the minister responsible. I certainly want to work with the committee at that time to improve our election laws.

I had a colleague yesterday, for instance, approach me about a number of aboriginal communities in his riding where the advance polls occurred for three days in the same community. They are fly-in communities. Meanwhile, there were no advance polls in other communities that you had to get to by airplane. This means that, effectively, in these communities of almost the same size, there were some with no advance poll at all, while others had three days of it.

All these issues are important, and I want to address them when we review the act, but that's not what we are doing today. We're responding to the court decision.

[Translation]

So why are we proposing 12 candidates before allowing a political party to be identified on the ballot? There were questions on this the last time. As I said last time, the number 12 is already part of our parliamentary tradition. We use it in other situations. For example, everybody knows that political parties must have 12 members in the House to be recognized as official parties in the House of Commons. So 12 suggests organized participation in the electoral process. Otherwise, we would not recognize it in the House of Commons.

We are still following the Court of Appeal decision. In Figueroa, the Court referred to a true political party or a political party in the true sense of the word. The House of Commons clearly considers 12 to be a true party. Otherwise, there would be no such recognition. So the number 12 works. We also believe the number 12 is in keeping with the Charter, as it can be justified based on the reasons I have just set out. We had to justify the number.

I think the number 15 would work too, since the Lortie Commission's report used 15 as a justifiable number. If 15 and 12 work, 12 is less limiting than 15 and works better. A requirement of only one candidate in order to publish the name of a political party on the ballot does not respect the voter's right to information. That is according to the Court of Appeal, not me.

[English]

In addition, to amend Bill C-9 to impose requirements other than the presentation of candidates—and, Mr. Chairman, you'll be called upon to rule on this, with the advice of your clerk—is not contemplated in the bill. These things are outside the scope of the bill before us today. In other words, they're matters to be introduced at another time, and any advice I could get for that time would be appreciated.

On the issue raised by Mr. White of party status in by-elections, it is by participating in a general election, Mr. Chairman, that a party can establish itself as a real party, a party in the sense of the word as the court defines it. How does one spontaneously say some group is a political party? Well, there must be some kind of history to demonstrate that it has a leader, a platform, a group of people, a critical mass, or however one identifies that. Surely, having presented candidates in the last general election would satisfy this threshold in the case of a by-election, because in a by-election I've heard of very few cases where you'd have a by-election of 12 candidates, or 12 by-elections occurring at once. If it has ever occurred, it must have been a long time ago. There's certainly no such instance in recent history. Therefore, I suggest it does not apply to by-elections.

• 1110

Now, a single candidate cannot establish that he or she meets the criteria for a new political party—one that wasn't there before—in a by-election. Why do I say this? The Court of Appeal stated it in Figueroa—and I quote paragraph 117:

Reference to a political affiliation on the ballot which is in reality no more than a name selected by an individual candidate is potentially misleading.

The court is again speaking here:

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

As a matter of fact, Madam Parrish raised this issue about people using the electoral process to advance some personal agenda last time. If you say any one candidate can put anything on the ballot, obviously it could lead to abuses like that. It's not just me saying this. It is in fact the courts.

There's a real risk of voters being misled when casting a ballot in a by-election if we allow party identification without requiring parties to meet the criteria of nominating at least 12 candidates. Because you never have by-elections in 12 different ridings at once, the only other application has to be the last general election.

That the entitlement of parties in the case of by-elections is governed by the status the party had in the previous election is not new. This isn't something we're inventing today. The existing rules for the 50-candidate threshold, and so on, are all based on the previous election anyway, in the case of a by-election. We're not inventing new election law by stating this here. It's an existing condition.

We should remember that the granting of financial benefits to political parties under the present regime is also based on their performance in the last general election. If candidates for the Liberal Party or the Alliance run in a by-election, they're only candidates for a political party because their party was a party in the last general election. That's not a new condition. Both party recognition and its financial return are based on the recognition that the party existed in the last general election.

If we question the validity of this particular scheme, we're really undermining the principle of our registration system, whose basis it is that party status can only be determined in a general election. There are plenty of thresholds needing to be met before one has a political party. There's a list of administrative requirements: name and abbreviation of the party; name and address of the leader; address of the office of the party; names and addresses of the officials of the party; names and addresses of the appointed auditor; names of those who have a consent to act; name and address of party chief agent; names and addresses with signatures from a hundred electors who are party members—all that sort of thing. Those are all requirements for a political party to exist now.

Let's not forget the goal of the amendment I'm submitting, Mr. Chairman. It's to provide the electorate with information that will help them make an informed choice. The political party named on the ballot has to be a party in the real sense of the word, as the Court of Appeal says. Otherwise, it would mislead the elector. Again, these are not my words, but the words of the court. Even in the case of a by-election, we must ensure that voters are well informed, in order to respect their right to vote.

We believe the requirement of having 12 candidates nominated in the last general election ensures that the party satisfies the terms set out in the Court of Appeal decision.

Mr. MacKay had raised an issue, but perhaps I shall not bring it up now. I'll wait until he arrives, because I believe he had misunderstood something in the bill, and I'd like to explain it when he is present, if the chair will allow me to do so. If not, I'll put it into the record at the end of the meeting so there will be a record of it.

The Chair: Thank you, Mr. Boudria.

• 1115

We'll go to Mr. Reid for an opening round of about seven minutes.

Mr. Scott Reid (Lanark—Carleton, CA): Thank you, Mr. Chairman.

It's nice to see you, Mr. Minister.

In 1993, with the consent of all parties that had recognized party status in the House at that time, a pernicious law was passed limiting the rights of smaller parties in this country. It is my view, which perhaps you could correct if I'm wrong in this, that the current bill being presented before the House that we are considering today is the latest in a series of tiny backwards baby steps forced upon this government by the courageous actions of Mr. Figueroa on behalf of small parties, including his own.

Mr. Figueroa of course, as head of the Communist Party, discovered partway through the 1993 election campaign that his party was in default of the 50-candidate requirement, and as a result discovered that his party was unable to contest the election at all, even where it had candidates nominated. All party assets were seized, and it was put in a position where it could spend money only on activities relating to the seizure and turning over of those assets to the Government of Canada.

Of course after the election, as a private citizen, he pursued the unconstitutionality of that action. This government defended the entire laws that then existed, including the seizure of assets. That was in fact struck down by Judge Malloy. The government then went on to appeal before the Court of Appeal of Ontario, not that particular provision, but rather a number of the other equally pernicious aspects of this law, including the use of the 50-candidate rule.

The government continued to defend, for example, the use of the 50 candidates for the party identifier at that time, a rule which was again struck down. Having lost twice and being instructed by the court to respond by changing the rules, the government then waited until an election had interceded, and then, on the second or third last day before the six-month deadline ran out, responded by coming up with a 12-candidate rule that had been agreed to by all small parties well in advance of this date.

The government continues at this point—unless they are going to decide to make an announcement in the immediate future—to be prepared to defend before the Supreme Court of Canada the non-issuance of tax receipts to parties that have less than 50 candidates, as well as non-access to broadcast time, and non-access—this is particularly important—to the final voters' list.

Moreover, independent candidates fall under this law. Even though the law does discuss making changes to the access of independent candidates to voters' lists, the government is not in fact changing a rule, which forbids independent candidates from having access to the final voters' list.

Now, in a riding like my own, Lanark—Carleton, which is growing rapidly, the preliminary voters' list is quite literally worthless for a candidate because of the high number of people moving into the riding. This means that John Baranyi, for example, who ran against me as an independent candidate, was not competing on a level playing field. It means that John Nunziata, for example, who is an independent candidate sitting in the House, had access to this list, but should he run again, he will not have access to the final voters' list. That would make it again impossible for him to compete on a level playing field in a riding that he has represented as a member of Parliament.

That of course is extraordinarily unfair, unreasonable, and undemocratic. I have a series of questions that relate to these points and observations that I've made.

The first is to inquire what on earth is the justification for not giving electors' lists to independents, who are not sitting in the House of Commons at the time the election comes up? Having heard the minister's eloquent defence of the number 12—and I should point out that the minor party leaders who were here also thought the number 12 was reasonable in many respects—one wonders why not therefore extend other privileges, such as access to the final voters' list and the right to issue tax receipts between elections, to parties that have 12 candidates, except that you haven't been ordered by the courts to do so yet.

What conceivable justification can be given for saying that significant privileges... because all significant privileges, other than the right to have a party identifier on the list, only kick in when there are 50 candidates. What is the justification for picking such a high number when we can see that it is undemocratic? It has in fact been permitted to go through by the Court of Appeal but only... the minister said the court approved it, but that is, of course, not true. The court in fact merely said it was not unconstitutional, not that it was not a bad law. The court refrained from speaking on that. What is the conceivable justification for saying you have to have 50 candidates, which means in practice you have to put $50,000 in as deposits for those candidates in order to contest the election, as opposed to allowing for a petition?

• 1120

Moreover, the minister's observations with regard to a petition... well, I'll leave that to another colleague perhaps.

Let me turn, Mr. Chairman, to one final question, and this relates to a conflict of interest that the minister will find himself in. I'm sure he'll want to deal with it in the best and most appropriate manner, but I would invite his comments so that we'll find out how he'll handle this.

This bill will come before the House, and I believe it will be one of the first bills, perhaps the first bill, to come forward to the House for report stage following the adoption by the House of a motion that the minister brought forward, which said, among other things—this is motion number 2—that:

...the Speaker will not select for debate a motion or series of motions of a repetitive, frivolous or vexatious nature or of a nature that would serve merely to prolong unnecessarily proceedings at the report stage and, in exercising this power of selection, the Speaker shall be guided by the practice followed in the House of Commons of the United Kingdom.

The Speaker, in describing how he would rule on it, said “I intend to apply these four criteria to all amendments at report stage, no matter which side of the House they come from.” In debate in the House last night, John Bryden raised the point that this will make it impossible—

Mrs. Carolyn Parrish (Mississauga Centre, Lib.): A point of order. Are we sticking to the seven-minute rule here?

The Chair: Yes, we are.

Mrs. Carolyn Parrish: How many minutes are left?

The Chair: I'll take that as a point of order.

Mr. Reid, you're the master of your own time. You have used approximately six and a half minutes of the seven. Just in terms of the questions you have left with the minister, it's my impression—I'll give you more time to wrap up. We're dealing with a bill that has specific legislative clauses and you've asked questions that pertain, in my view, to issues that go beyond that. They're not questions that are not important; they're just questions that, in my view, go quite a way beyond the scope of the bill.

You're at liberty to ask the question. I'm not going to rule it out of order at this point. It's your seven minutes. The minister may or may not wish to respond accordingly. So I'll let you wrap up. You have about a minute to wrap up.

Mr. Scott Reid: The remaining comments I have relate very specifically to the bill and how it will be dealt with in the House of Commons, and that's relevant to our consideration there.

Mr. Bryden's observation was that at report stage it may be impossible for members, including government backbenchers, to bring forward proposed amendments that had not been dealt with at all here at committee. Given that you are also the government House leader, Minister, and given as well that you are the person who brought forward the motion we discussed yesterday on modernization of the House, and given that therefore you would also, as House leader, be the person who would be bringing up any complaints to the Speaker with regard to how this bill is being treated, is it your intention to allow motions for amendments to be brought forward in the House that have not been brought up in the committee here today?

The Chair: Mr. Reid, the question about who would allow amendments should be put to the Speaker of the House. The minister doesn't—

Mr. Scott Reid: Will he be raising any objections in the House?

The Chair: —control parliamentary procedure. But in any event, I'll let the minister answer.

Mr. Don Boudria: Let me start by saying that I won't respond to accusations or allegations or comments that are out of order. I'll try to rise above that.

I'll answer about the bill instead, which I believe is the reason why I was summoned here this morning. The rest of the stuff can be dealt with accordingly, depending on where the allegations, particularly those of conflict of interest, are made, and appropriate consideration will be taken.

On the voters' list, in reference to candidates in an election, if the committee has recommendations to make to change that once the bill to amend the Elections Act appears here, I'm quite prepared to consider that. I have no objections. The committee will no doubt want to get the Privacy Commissioner and others to testify, depending on the advice they get.

• 1125

I'm quite prepared to listen to alternative methods of offering that list, to whom it is offered, what version of the list is offered, and at what time. I'm not really married to the one that's there. But I'm sure Mr. Reid, with his vast knowledge of such issues, will know that we have received advice in the past from a number of individuals, including the Privacy Commissioner, on the appropriateness of releasing what list and at what time. But following that advice, I'm prepared to listen to the constructive criticism of this committee.

On the business of 50 candidates being undemocratic, and I believe those were the words that were used, clearly that's false. The Court of Appeal has held that to be totally constitutional, totally respecting the Charter of Rights and Freedoms of our democratic society; therefore it's democratic. There is no such thing as a court commenting on whether it likes or dislikes a law. All law is good law unless it is struck down. I'm not a lawyer. Perhaps the honourable member is, but he would know that.

On generating a new party by way of a petition, which is a suggestion that I believe was made by Mr. Reid as well, if colleagues want to offer suggestions to that effect when they review the entire Elections Act, let's see what they come up with in terms of suggestions. Then we can question the Chief Electoral Officer, if he doesn't make that recommendation, and offer advice. But that's totally outside this bill, of course. The bill doesn't do anything like that.

On the issue of liquidation of assets, I did not appeal that. The first judgment rendered by Justice Malloy I thought was quite reasonable in that regard. I didn't appeal it. I thought it just abandoned the issue right there.

On the $1,000 deposit, the $1,000 deposit comes from the royal commission on elections. It had determined that we should abolish the two $500 deposits we had. Members will know that we have a $500 deposit in order to achieve 15% of the votes and another $500 deposit when you file your papers. The court said that was not right, and of course Lortie had already counselled us on that, so I changed it. I proposed, through you, that there be a flat $1,000 deposit, and even if you get half a percent of the vote, you get it all back. That satisfied the court, I believe, and it was also consistent with the royal commission, the Lortie commission.

About the 50-candidate threshold, this is an interesting issue because members have various views. For instance, let me quote what a member who has been here for some time said in the House on the debate on Bill C-9, on page 1090 of Hansard of February 23:

We are continuing the debate on Bill C-9 from yesterday when unfortunately the member for Regina—Qu'Appelle made reference to a private member's bill that I introduced in the House. My private member's bill would seek to change the current number of members required to be designated as an official party in the House. The proposal in my bill is that a party would require 10% of the seats in the House of Commons.

—in other words, to raise the threshold we have now.

I am quoting here a very respectable member, Mr. Jim Pankiw of the Canadian Alliance. That's his proposal, to make the threshold much tougher than what I'm proposing. It would make it almost as high as the one rejected by the court in order to have the name recognized on the ballot.

I can operate in various ways around here, but when one particular political party has several different positions on how to do this, it becomes quite hard to respond to the particular party position.

On the seizure of assets, they are no longer seized. I answered that previously.

On the party identification and on the 12, that respects, I believe, the decision of the Court of Appeal, as I believe the 50 does for getting a financial return.

Finally, it was a member of the then Reform Party, now the Canadian Alliance Party, who urged this committee in the last Parliament to toughen the rules on the small parties for getting money back with the so-called amendment on the Natural Law Party. The Natural Law Party amendment was proposed to this committee by a Reform MP to make the rules for getting money back tougher on smaller parties. It wasn't proposed by me—I wasn't even a minister then—but I sat on this committee and was persuaded by that advice from a Canadian Alliance MP.

• 1130

The Chair: Thank you.

Mr. Geoff Regan (Halifax West, Lib.): A point of order, Mr. Chairman—

The Chair: I want to indicate that we have invested a fair amount of time; it was a 15-minute series of comments, questions, and response. It's okay for an opening round. It's the official opposition that put it. But I'd like to tighten up a little bit on the time.

Did you have a point of order, Mr. Regan?

Mr. Geoff Regan: Mr. Chairman, you've discussed my concern, which was that seven minutes has become 15. It seems to me that if a party chooses to use up the time its first couple of turns would take, then perhaps it should be treated that way.

The Chair: Thank you for your comment.

Now I'll recognize another opposition party, Monsieur Bergeron, and then I'll go to Ms. Parrish, then Ms. Davies, Mr. Jordan, and Mr. Regan.

[Translation]

Mr. Stéphane Bergeron (Verchères—Les-Patriotes, BQ): Thank you, Mr. Chairman.

Minister, I basically have two questions.

In a way, Mr. Reid already asked the first question. It is about whether independent candidates should have access to the final voters' list for their riding. It seems fair to me for all candidates in an election to have the same tools to run their campaign, communicate with voters and get their point of view across.

If you are suggesting the committee should think about it some more, I feel we should go ahead, because perhaps a third category should be created under the Elections Act. I think everyone who runs for election should have access to that list.

My second question is about the requirement to have had 50 candidates in a previous election in order to be entitled to tax breaks and government refunds of election expenses.

Mr. Don Boudria: That requirement applies only to a by-election.

Mr. Stéphane Bergeron: I am not sure I follow.

Mr. Don Boudria: Sorry for interrupting. Finish what you were saying, and I will answer again.

Mr. Stéphane Bergeron: A political party still has to run 50 candidates in an election to be entitled to tax breaks and refunds.

Mr. Don Boudria: Not in a previous election.

Mr. Stéphane Bergeron: What do you mean?

Mr. Don Boudria: A new party that runs 50 candidates in a general election does not have to do so twice in order to qualify.

Mr. Stéphane Bergeron: Right. We did it in 1993. We ran 50 candidates and were therefore entitled to tax receipts and refunds afterward.

Mr. Don Boudria: Right away. Yes.

Mr. Stéphane Bergeron: I fully understand that. But an embryonic or emerging political group running in a by-election would be denied the benefit of tax and other breaks.

In Quebec, a political group that registers and undertakes to run 20 candidates in the next general election is considered a political group entitled to tax breaks, election refunds, etc.

Is that something you might be willing to consider for small political groups running in a by-election? We are actually dealing with the problem of small political groups running in a by-election.

Mr. Don Boudria: First, the situation you described is not in the bill before us.

Mr. Stéphane Bergeron: I agree, but...

• 1135

Mr. Don Boudria: It is in the current act. So we are discussing some other bill that is yet to come, not this bill, because that has nothing to do with this bill.

Mr. Stéphane Bergeron: I do not know if I would say “nothing”...

Mr. Don Boudria: But it is not in the bill. It is beyond the content of the bill. It is an existing situation that is not changed by the bill.

You used Quebec as an example; Quebec has 24% of federal members of Parliament. If you take your example of 20 out of 125—or one fifth of total seats—and apply that to 301, you get about 50. So you are suggesting the act should provide for an undertaking to run 50 candidates in the future.

Mr. Stéphane Bergeron: In the next general election.

Mr. Don Boudria: But then you would probably need some way to recover the funds if that did not happen. I do not know how the Quebec National Assembly's legislation is drafted, and I would be interested to find out from your overall consideration of the Election Act. However, as I was saying, it is not part of this bill.

It is important to point out that you must not misinterpret what is in the current act and in this bill. In any case, it is not in this bill. We are saying that in order to be entitled to the election refund, you do not have to have run 50 candidates in the previous election. It may happen the first time. It did for the Bloc Québécois and the Reform Party in 1993. Even though it was the first time the party ran over 50 candidates, it was immediately entitled. That only applies to by-elections, only then are political parties entitled to that financial support. The Court of Appeal defined what constitutes a political party, but political parties are entitled to this because they have been identified somewhere as politicial parties. According to current thinking, the most logical "somewhere" is the last general election. After all, there is an election every four years. That is really not very long ago.

If you want to recommend something else and a way to make it work, go ahead. I do not promise to accept it, but that will probably be part of your whole consideration of the matter.

Mr. Stéphane Bergeron: Do I still have a little time left, Mr. Chairman?

[English]

The Chair: We're at seven minutes. I don't want to go down the same road we've been going down with reference to Mr. Regan's point of order.

[Translation]

Mr. Stéphane Bergeron: I just want to know whether there is any time left.

[English]

The Chair: No, there is not. We've now finished seven minutes.

Mr. Stéphane Bergeron: Okay.

The Chair: Thank you, Mr. Bergeron.

Ms. Parrish, Ms. Davies, and Mr. Jordan.

Mrs. Carolyn Parrish: First of all, I just want to comment on Mr. Kingsley's report. When we review the Canada Elections Act, I think we're going to have to give him broader timelines. I read the report, and the part that's the most interesting is the difficulties expressed by the returning officers. The chapter says it's too soon to give us any information on that, so I really think we should delay the presentation of that report—it's very thick and very expensive—until we can actually get some substantive material in it. I was disappointed in it, but that was not Mr. Kingsley's fault.

Secondly, in regard to this bill specifically, I have a proposed amendment that I've given you copies of. First of all, on the record, I believe 12 is too low. I know you have to use 12 because you've been forced to pick that number, but I think it can be abused on what I call a spontaneous basis. In other words, 12 real estate agents are sitting together, they hear the Prime Minister talking about calling an election, and they decide to form a party called the Re/Max Party. The electoral event is a logical time to legitimize a party. The threshold of 50 exists from one event to the next for anomalies like the Tory Party—and Peter MacKay actually supports this amendment.

I just want to read it to you, because I'd like your comments before I present it when we do clause-by-clause. In clause 12 I would like to replace lines 3 to 8 on page 4 with the following:

(d) the party has candidates whose nominations have been confirmed in at least 12 electoral districts for the general election and

—and this is the new part—

had at least 12 candidates in the immediately preceding general election; and

—and then we would have to bring in a paragraph (e):

(e) in the case of a by-election

—which is already in paragraph (d)—

the party had at least 12 candidates in the immediately proceeding general election.

• 1140

I think you need to do this for consistency. I think you need to do this to tighten it up a little for spontaneous acts of treason—I'm using that word frivolously. As the electoral officer said the 12 candidates in the immediately preceding election apply to a by-election, I don't see why that can't apply to the bill itself, that 12 candidates had to run in the immediately preceding election before you were legitimately able to put your party on the ballot. I'd like your comment on that.

Mr. Don Boudria: One problem I have with that is this... This is the exact opposite approach, by the way, what we're hearing now. This is going completely in the other direction. In fact, you would need to have run 12 candidates in two elections—probably in sequence, if I read this correctly—before your name got to be on the ballot. The Court of Appeal clearly established two different thresholds in their decision, one for getting the financial decision, the other for the party identifier, and said that in the case of the party identifier, the threshold had to be lower than the one of the 50 candidates for the financial contribution. It had to be a critical mass that people could associate with a political party, but the name was essentially there for people to make an informed choice.

Saying the party had to run candidates in two successive elections before it got to be recognized I think goes beyond the informed choice the court referred to in the decision. It's a threshold that's additional to what the court—

Mrs. Carolyn Parrish: Mr. Boudria, if I could interrupt you, it is two consecutive elections, but you would qualify on the second one to get your name on the ballot. So it would be the same qualifier as for by-elections. You would need to have run 12 in the 1997 election to put your name on when you're running 12—or even one in a by-election.

Mr. Don Boudria: Perhaps so, Mr. Chairman, but with respect, we don't ask parties to do that for the 50-candidate threshold—the Canadian Alliance and, particularly, the Bloc both became parties by the same triggering mechanism in exactly the same election. So we don't have that notion of running twice for the 50-candidate threshold, the 50-candidate criterion, but we want to apply it twice to the 12, and the courts have told us the threshold had to be less onerous for one than it was for the other. We're making it, arguably, twice as hard, albeit for a small number. The advice I'm getting from the legal officials who are sitting with me is that just wouldn't cut the mustard with the courts.

Mrs. Carolyn Parrish: With all due respect, why is it working then in a by-election?

Mr. Don Boudria: I would argue because there has to be a point at which one identifies a political party. Running one candidate cannot identify a political party, because a political party, according to the courts, is a mass of people, a leader, and so on. So running one candidate and saying, here, I'm a party, and the proof is that sometime later I'll run some more of us—the court said, wait a minute, this is exaggerating, that's not a party at all.

On the other hand, saying you have to do it twice, when we're not even asking that for the people who actually get a financial contribution... Sorry again to point to the Alliance and the Bloc, but it's a fact that they're the two parties who were triggered by that kind of mechanism. To say that, for instance, for the Widget Party you'd have to run candidates twice to reach the 12-candidate threshold in order to have it on the ballot, while the Alliance and the Bloc only had to run them once, provided they had a sufficient critical mass to get not only the name on the ballot, but an actual refund, would, in my view, not be acceptable to the court. That's the advice I've been getting around the table.

The Chair: Thank you, Mr. Minister and Ms. Parrish. We'll go to Ms. Davies, and then Mr. Goldring and Mr. White.

Ms. Libby Davies (Vancouver East, NDP): Thank you for coming, Minister.

First, I'd like to say that as far as this bill goes, we're glad to see that at least there is some change being introduced based on the very lengthy litigation that took place. When the witnesses came before the committee, I think they spoke very well about what's at stake for them. What struck me is that I think many of us, hopefully all of us around this table, would agree that, in our society, protecting the rights of minorities is very important. It's a part of democracy; it's part of what we value as Canadians. I think the same kind of principle applies to protecting the rights of smaller political parties that don't necessarily have massive clout but are still very much a part of our pluralistic society and how our elections play out.

• 1145

What I found interesting from the witnesses on the idea of different thresholds for benefits, for example, the party identifier... they themselves recognize as a principle that there are some benefits based on establishing a higher level of running candidates or electing people, and so on. So that wasn't at issue for them, but what was at issue was that while they agreed that the lower threshold—now at 12 candidates, although one of the parties actually wanted to go down to two—for these benefits was important, there are other basic benefits that should be included in that.

That's really what I want to question you about, because it seems to me that it really underlies the principle of this bill. Here we have a significant change that says yes, we'll recognize that in order to get your party identified on the ballet, it will be 12 candidates, but for other basic issues... They named the tax receipts, which I know is income tax, but the voters' list, and also being able to return to their party the money the candidate got, if there was any money left over, rather than to the government. So they saw that as sort of meeting the lower threshold.

So, really, whose interest is not being served if this is not included? I don't know who it would be hurting if it were included. Who are we protecting here by not including this basic premise based on the 12 candidates that are running?

Mr. Don Boudria: If we accept the principle that there are two thresholds, the tax receipt is a taxpayer subsidy.

A taxpayer subsidy, of course, occurs in two different ways. Part of it is the tax receipt, and the other part is the 22.5% given to political parties and the 50% given to political candidates. So there are two different ways in which public dollars are invested. The courts have already spoken on that, and I would submit that the courts have said that the 50-candidate threshold worked, and I think that's the one that should stay.

On the voters' list and things like that, as I said, I'm willing to listen to your advice, but please consult people like the Privacy Commissioner and the Chief Electoral Officer. For instance, at what point would you release a voters' list to a defeated independent candidate after an election while respecting the privacy laws of Canada? I think you'd really want to have advice on that. Some of these documents really start to exist only after the election is held, so you want to know some of that.

There are issues involved in the protection of privacy, on which you will no doubt want advice, because that has to pass charter tests, and so on, in other ways. We have to protect those as well.

To all of us who have voters' lists given to us, those lists are issued with a whole set of instructions as to what we're not supposed to do with them. There are very strict criteria surrounding that list. None of us could take that list and sell it to an organization to do their solicitation for a particular cause, or for their particular fundraiser or what have you. We can't do that as members of Parliament. Someone who ran as an independent candidate and got four votes in your riding last time is of course not an MP and is not subjected to any of the rigours of an MP. Could they?

• 1150

You must consider all those things when you're making those decisions. Please ask all those questions of the Privacy Commissioner and the Chief Electoral Officer, and then in the advice you'll provide in your report, I'm open to discussing alternative ways.

But it's not a one-way street. There are other sides to this that you will want to remember. When we got into the permanent voters' list some years ago, we had many of these debates around this table.

Ms. Libby Davies: I should clarify that what was put forward at the committee by the witnesses was not that this would be after the fact, but it would be the final voters' list that would be made available to candidates.

For sure, there are issues of privacy. In fact, this has already come up at the committee. But it seems to me there has to be a balance, and the ability of candidates to see that final list... There can be protections built into that to ensure privacy concerns are met. I want to make that distinction.

Mr. Don Boudria: I'm getting information here that some of this information actually only becomes public after the election is held, particularly the final list.

Again, we're going to have to sort all this out in terms of whether we should give it. After an election, we give the final list to an MP and to a registered political party. But should someone who's not an MP, not a political party, and may have put their name on the ballot last time to have access to a list for commercial purposes, have it? I don't think I would hear unanimity right now around the table on this.

That's why I say it's not that easy. You want to ensure that the privacy of Canadians is respected in the process as well. I don't object if during the campaign there's a point at which additional information becomes available to candidates for official parties and is not available to independent candidates. If you find that is happening, by all means make the recommendations to correct that. But I think you'll want to treat differently the information that becomes public the day after the election, particularly once other witnesses have appeared before you.

The Chair: Thank you, Ms. Davies.

To clarify, for the record, the terminology on what we're calling the final voters' list—and I stand corrected if I'm wrong—the final voters' list does not actually appear until after the election date because voters, citizens, have the ability to get on the list on voting day. So the list that candidates would work with within an election is technically not the final list. It's always interim until you've finished on election day.

We'll go to Mr. Jordan, and then Mr. White.

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

I want to touch on the liquidation of assets of deregistered parties. I'm a little concerned that this is being characterized as some kind of action to punish the party.

It has more to do with the fact that any registered charity that chooses to cease to exist through their own actions or if they're in contravention of the revenues laws, any group with a charitable status number that wants to dissolve, has to liquidate its assets. That's not anything specific to political parties; it has everything to do with the fact that they were raising money and issuing tax receipts. We can't have them just decide they no longer want to be a charity and then keep all the money they raised. That's ridiculous.

But, Don, specifically in Bill C-2, did we not expand legislatively the discretion of the chief returning officer in those cases to make a judgment based on the reasonableness of that party to make a comeback? Haven't we already addressed that?

Mr. Don Boudria: First of all, it's outside the deal here.

Mr. Joe Jordan: Yes, I know that.

Mr. Don Boudria: But secondly, yes, we have addressed that, in a number of different ways.

First, we didn't appeal that Figueroa part of the decision. I don't see what objective was served by having someone go and seize the Communist Party's desk, or something. Where is the public interest served with a gesture like that? That was nonsensical.

• 1155

But in the case of a political party that ceases to exist after having had the support of Canadian taxpayers, I think most of us would agree that there has to be a mechanism for liquidating its assets. This was corrected in Bill C-2. The party must prepare a report on expenditures and present a report of assets. There are administrative papers to be filed with the Chief Electoral Officer. And there are also criteria about presenting candidates in the future election, if the party missed the target but proposes to hit it next time.

In other words, there is not only a more humane structure but one that most people would think is probably logical. Of course, at the risk of repeating what I said initially, we did not appeal that part of the law. When Justice Malloy rendered her decision, that was the end of that.

As you probably know, that bill was passed under the previous government. That group of activities was started then, and the shoe was finally disposed of by Justice Malloy. That was the first one we put aside. We said, let's just find an appropriate mechanism to deal with this. We didn't appeal this, because it didn't seem appropriate.

The Chair: Thank you, Mr. Jordan.

We'll go to Mr. White, who definitely has questions left over from our second-last meeting, and Mr. Guimond has a question too.

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

Mr. Minister, a couple of points came up from the answers to the other questions. I thought I'd make a couple of quick observations before asking my question.

You mentioned a couple of times about getting legal advice. With all due respect, I would suggest that maybe you need to think about who you have as lawyers, because they've been giving you bad advice. You keep going to court and losing cases, at great expense to the taxpayers. It might be worth shopping around for a second opinion.

In terms of possible abuse of this 12-candidate rule, frankly, I don't believe it's a reasonable approach to deny voters the right to see the name of a party on the ballot, just in case some other group might abuse that privilege.

For example, Mrs. Parrish said that maybe some real estate agents could get together and put their name on the ballot. Well, sure, that's a risk, but we need to cope with that in other ways. We should find other ways to deal with people who abuse the privilege, rather than denying voters the right to see genuine parties on the ballot.

In your opening remarks, you talked about respecting the decision of the court on helping the electorate to make an informed decision. Now I don't have the exact wording here, but it has been read into the record already in previous meetings: the court made it clear that the party name is on the ballot for the benefit of the voter. That was very, very clear. That was also the argument I put forward when we were deliberating Bill C-2: the name on the ballot is there for the voter. That's a very important point.

Mr. Minister, in answer to Mrs. Parrish's question, you said yourself that name was on the ballot for the benefit of the voter. When the Chief Electoral Officer was here a week ago, he talked about this inconsistency in the by-election: a party cannot put its name on the ballot if it hasn't run 50 candidates in the previous election.

I became quite concerned about that. If we look at recent history, when Deborah Grey was first elected to this House, for example, it was in a by-election right after a general election. The Reform Party had in fact met the 50-candidate rule then. But if we hadn't, or if that by-election had been before the general election, then Deborah Grey wouldn't have been entitled to have the name “Reform Party of Canada” on the ballot and voters wouldn't have known she was a Reform member. So who would we be punishing?

The principle is very important, and it's just as important in a by-election. The voters have the right to know that a name appearing on the ballot is associated with a party, whether or not that party ran 50 candidates in the previous election. That's totally irrelevant. That name is there for the benefit of the voter.

When you look at recent history, both the Bloc and the Reform Party of Canada were generated in recent times. It's certainly possible that a new party could spring up in the next six months, meet all the tests of the Chief Electoral Officer for party status, and be capable of running 50 candidates in the next general election, but still not be allowed to put its party name on the ballot at the by-election. It just doesn't make sense.

• 1200

I would respectfully suggest that you reconsider your approach and look at amending this act. In the spirit of the court ruling, you must change the bill to allow voters to see a party name on the ballot—even in the case of a by-election.

That sums up my feelings on the issue.

Mr. Don Boudria: Well, various members, even within the party, have different opinions. Mr. Pankiw's opinion is far more restrictive than that, more restrictive than the rules as they presently exist. Now, he perhaps is not the official critic for your party—that's probably you—but the point is that making that rule even less restrictive is not universally supported.

The court in paragraph 117 or 118 did say what Mr. White said it did, in part—but with a qualifier, and an important one. The court said that voters could also be misled if a ballot indicated a candidate was affiliated with a political party that was not a political party, in the real sense of the word. The objective of preventing voters from being confused or misled by information on the ballot is a pressing and substantial one. It is essential if voters are to make an informed choice.

So the court is telling us that if a party has no previous history as a political party, just identifying itself as one on a ballot isn't good enough—because it tends to mislead the voter. This is why we're using the same ballot identifier principle for by-elections, albeit with a lesser threshold, 12 candidates, rather than 50 for the general election. We're using the same principle, but with different thresholds for candidate reimbursement.

That's not an additional threshold, as Mrs. Parrish suggested. I think that would have gone the other way. The thresholds are parallel, both going in exactly the same direction, but at two different levels. We're not adding obligations, we're taking them away, but in a parallel way. I think that's totally consistent with making appropriate law.

If the 50-candidate threshold was wrong, the courts would have told us that. If a threshold of zero or one would have been correct as an identifier, the courts would have told us that too. But the courts did precisely the opposite. They said to identify a group of people as a party, in the “real sense of the word”. To be technically correct, I would have to refer to paragraph 117.

The Chair: Mr. White, I'll let you have a very short last word.

Mr. Ted White: Mr. Minister, it's a total red herring to raise private members' bills in conjunction with government bills. Individual members don't have the benefit of court rulings and decisions in their private bills.

You also mentioned that the court has ruled that a party has to be a real party. Well, we have rules in place under the Elections Act that define what a real party is. So it's not inconsistent with the court ruling to say that an entity that has proved itself to be a real party by the registration process should also be entitled to put its name on the ballot for the benefit of the voters.

I think you're deliberately avoiding the logic. You will lose again in court. I don't understand why you keep fighting it. It's for the benefit of the voters—that's the logic. When it goes back to court, you will lose again.

• 1205

Mr. Don Boudria: If I can just respond, Mr. Chairman, the member is saying there are structures to identify what a real party is. Yes, and one of those is to have run candidates in the previous general election. So we're agreeing. We just don't arrive at the same conclusion based on those facts. If we say criteria exist now to establish what a party is, I agree with him, and having run candidates in the previous election is one of them.

The Chair: Thank you, Minister. Mr. Guimond.

[Translation]

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

Minister, for my first comment, I would just like to point out that what Mr. White said about Ms. Grey's election as an independent also applies to our current leader. Just to refresh your memories, may I remind you that in the August 1990 by-election, the current leader of the Bloc Québécois, Mr. Duceppe, was not allowed to indicate the name of the party.

Having said that, I wanted to tell you, Minister, that I feel somewhat disappointed. I understand that Bill C-9 is an emergency response (except for the language and translation corrections) designed to comply with Figueroa.

I just want to tell you that there are entire sections of the Elections Act that need to be fixed. When Mr. Kingsley appeared before us, I raised a number of cases. In each case, he and his team said there were things that had not worked properly in my riding. Yet from discussions with my colleagues from all parties, it appears things are going on that I would like to indicate to you generally, so you can prepare yourself psychologically.

Perhaps no amendments are currently tabled, but based on what Mr. Kingsley said about his report on the November 2000 election, we hope you will be willing to entertain amendments to the Elections Act.

Mr. Don Boudria: I have already said so.

Mr. Michel Guimond: Among other things, when we asked Mr. Kingsley about the whole issue of dealings with returning officers and the accountability of returning officers, it became clear there was a difference of opinion between Mr. Kingsley and government members on the appointment procedure.

He basically told us, not in so many words, that returning officers were not legally accountable to him. He is apparently responsible for election policy, but returning officers administer the act according to their own interpretation.

I can tell you that in the last election, multiple corrections had to be made to the voters' list at the last minute, and there were problems choosing the correct polling station; some of these problems infringed the democratic right of citizens to vote freely, etc. In any case, we are currently gathering examples of incidents that occurred in the 75 Quebec ridings. We will be presenting you with a very thick document, as you can well imagine.

I just want to tell you, and perhaps it is more of a comment than a question, that Bill C-9 could perhaps have been used to fix large parts of the Elections Act.

[English]

The Chair: I'm just going to thank Mr. Guimond for his comment.

We're doing clause-by-clause consideration of a bill, Mr. Minister.

While the issue raised is important and all members have raised very important issues, we did want to try to get to clause-by-clause consideration today. I'm in the hands of colleagues, but if we're going to discuss matters outside the bill, we may never get there.

I'm dealing with an issue of order right now. I'll be happy to recognize you.

I don't want to unduly constrain members from saying things or even the minister from giving an answer. I just want to keep us focused, if we could.

Mr. Bergeron, on a point of order.

[Translation]

Mr. Stéphane Bergeron: I have three comments, Mr. Chairman.

[English]

The Chair: Just keep it very short, Mr. Bergeron.

• 1210

[Translation]

Mr. Stéphane Bergeron: Yes. First, I believe the minister indicated he might be willing to entertain an amendment on access to the preliminary or “near final” voters' list just before an election. We can define precisely what we are referring to, but it will probably take another working meeting—

Mr. Don Boudria: No, not in connection with this bill.

[English]

The Chair: Let me just take care of this. Mr. Bergeron, I think the minister was referring to future legislation and not this bill. I think he indicated he is very open-minded as to what this committee might put forward.

[Translation]

Mr. Stéphane Bergeron: May I please be allowed to finish my point of order, Mr. Chairman? May I?

[English]

The Chair: Carry on, Mr. Bergeron.

[Translation]

Mr. Stéphane Bergeron: Second, seeing that there are only 15 minutes left before this meeting ends, I would be very surprised if we got to clause-by-clause study of the bill today, especially since it seems to me there are more questions for the minister. I have another one myself. So I am not sure we can do it today, Mr. Chairman, honestly.

[English]

The Chair: I'm not so sure I agree. Why don't you put your question to the minister and see how we do?

Mr. Michel Guimond: I have a point of order.

[Translation]

I would like the minister to respond to my comments or give his opinion on them. He wanted to, and you interrupted him.

[English]

The Chair: Monsieur Bergeron, I suggest you put your question as well, and the minister will take care of both.

[Translation]

Mr. Stéphane Bergeron: Minister, you earlier dismissed my suggestion, more or less, by saying that it was not directly relevant to the bill we have before us. I beg to differ, for the reason set out by Mr. White, because of the limits placed on small political groups in a by-election.

The best example we can give, Minister, and one which is completely consistent with the judgment that was handed down, is that of the Bloc Québécois. As Mr. Guimond pointed out, the Bloc Québécois leader ran in a by-election in the summer of 1990, when the party was not yet officially established. He therefore ran as an independent, even though the party was already in its infancy.

The party was officially formed in June 1991. Had there been a by-election between June 1991 and October 1993, when you can be sure the Bloc Québécois was already a political party in the minds of all Quebeckers, a Bloc candidate could not have indicated the party's name on the ballot because there were not 12 candidates.

So I come back to my suggestion; perhaps we could provide a mechanism to recover amounts granted by the government if a party that undertook to run 50 candidates in the following election did not comply with that requirement. Such a provision would allow a party who undertook to run 50 candidates in the next general election, or 12 in a by-election, to have the party name on the ballot when it is clear in the minds of all voters that the party indeed exists.

That would have allowed potential candidates for a party like the Bloc Québécois, between 1991 and 1993, to have their party name on the ballot. They would not have had to run as independents when in fact, they were running under the Bloc Québécois banner. If that had been the case between 1991 and 1993, you and I know the public would not have regarded those candidates as independents. They would have been considered Bloc Québécois candidates.

However, the act as you are amending it would not allow a Bloc Québécois candidate to have the party name on the ballot. And what is true for the Bloc Québécois could easily be true for any other political group. That is why I repeat my suggestion, Minister, because it may indeed be directly related to the purpose of the current bill.

Mr. Don Boudria: Mr. Chairman, that goes completely beyond the bill. The bill contains no mechanism for creating new parties between elections and no requirement of 50 or 12 candidates. So this has nothing to do with the bill.

The chairman will have to decide, with the support of the clerk, whether such an amendment is recommended, but those are concepts that do not exist in the current bill. It is not an amendment to the bill, but to the act as it currently stands. However, you cannot change the main act through an amendment; you can only amend the bill. That is all I have to say about the first suggestion.

I will attempt to quickly respond to Mr. Guimond, who said that Mr. Duceppe's situation was more or less analogous to that of Ms. Grey. That is not quite right.

• 1215

First of all, in the case of Ms. Grey, there was an existing party that had already run several candidates in the previous election. In the case of Mr. Duceppe, even the five or six MPs who had banded together at the time did not yet declare themselves to be a political party. As Mr. Bergeron said, that happened much later.

So the situations are not analogous. Not at all.

Mr. Michel Guimond: You said that the Reform Party had run candidates before the 1990 elections.

Mr. Don Boudria: Before the election—

Mr. Michel Guimond: Before the by-election of Ms. Grey in 1990.

Mr. Don Boudria: I think so. Mr. Manning had run against Mr. Clark, in his riding, as well as a number of others. Yes, yes. The situations are not at all similar.

[English]

The Chair: Thank you, Mr. Minister, Mr. Guimond, and Mr. Bergeron.

Colleagues, I think we're in a position now to go to clause-by-clause consideration. It's a bill of some 20 clauses. We have a net three proposed amendments.

Having said that, I will thank the minister.

I would ask officials to render themselves present and available for clause-by-clause consideration. I would ask the clerk to distribute amendments and procedural documentation for purposes of clause-by-clause consideration.

If colleagues would turn to the bill and the amendment package, we could commence very shortly our disposition of clause 1. I will be shortly asking shall the clauses in the bill carry, but I won't do that until we're all ready. And it looks like...

Monsieur Bergeron on a point of order.

[Translation]

Mr. Stéphane Bergeron: I would remind you again that we have only 20 minutes remaining and we have just tabled a series of amendments with the clerk, which will have to be photocopied and handed out to committee members before we can begin. They just have to be handed out.

[English]

The Chair: I think we'll commence. I'm not so sure we have just ten minutes left. Our meeting slot is 11 o'clock to 1 o'clock. I realize we have always tried to finish at 12:30. Let us get into our business and see how we do.

Excuse me, the clerk has something he wishes to discuss with me.

Colleagues, we just received a number of new amendments to be proposed by some of our colleagues, so these have to be folded into the proper sequence.

Mrs. Carolyn Parrish: Mr. Chair, I'll withdraw mine.

The Chair: Thank you, Mrs. Parrish.

The chair is ready to proceed with the first amendment. While the clerk continues to adjust the lineup to accommodate the new proposed amendments, we can proceed with the first amendment.

We're now going to clause 1 of the bill.

(Clause 1 agreed to)

• 1220

(On clause 2)

The Chair: Monsieur Bergeron has an amendment to clause 2. This is the amendment, Monsieur Bergeron, dealing with inclusion or not of the Senate, just to help you get started.

Colleagues will recall that clause 2 in the bill adds to the Canada Elections Act a provision that any new proposal to deal with electronic voting by voters should be referred to not just the House of Commons, but also the Senate. This bill adds the Senate.

Mr. Bergeron on that subject.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, the minister in question, with reference to this amendment to section 18.1 of the Elections Act, stated that all bills that concerned legislative changes should necessarily refer to both Houses of Parliament and their components, that is, to the various parliamentary committees of both Houses of Parliament.

I believe that he is entirely right on this. The Constitution being what it is, and the Senate being one of the two Houses of Parliament as it currently exists, it is absolutely true that, if legislative changes are to be made, they must be submitted to both Houses of Parliament and their components.

That being said, I believe that the minister was not able to demonstrate, beyond any reasonable doubt, in response to a question asked by Mr. Nystrom, that in a case such as that, concerning simple technical approval...

The Chief Electoral Officer did indeed tell us that he would come to consult us, that he had no obligation to consult us but that he had the power to do this, like a certain number of other things. He let us understand that, in order to conduct a technical test, he should no doubt seek approval from the parliamentary committee. Well, what would be more natural than to ask the parliamentary committee made up of elected parliamentarians to approve a technical voting process for testing?

I do not think, therefore, that it is either appropriate or useful—and I would even say that it is somewhat reprehensible—to claim that un-elected senators have a say in the matter of giving technical advice to the Chief Electoral Officer regarding the testing of a new method for consulting the people.

I would suggest, Mr. Chairman, that we quite simply eliminate the reference to Senate committees in clause 2. That does not mean, Mr. Chairman, that I do not recognize that every issue of a legislative nature should be submitted to the other House and its components, given the current state of affairs.

[English]

The Chair: Thank you, Mr. Bergeron. Any further discussion? Mr. Reid.

Mr. Scott Reid: The minister has expressed a willingness to review the electoral act as a whole and to make further changes as necessary. That suggests to me that at some point in the future, when and if the Senate becomes an elected body, its role as a chamber of sober second thought may be appropriate. Perhaps if we were to agree with Mr. Bergeron's amendment and write the Senate out of the review process at this point, while it's an appointed body, and then in the future, should that change be made, write it back in, that would strike me as being an intelligent method of proceeding. So I would urge all committee members to strongly support Mr. Bergeron's proposed amendment.

The Chair: Thank you. I'll put the amendment.

• 1225

There's a request for a vote.

(Amendment negatived: nays 9; yeas 3)

(Clause 2 agreed to on division)

The Chair: Mr. Bergeron, there is an amendment, I see, to add a clause to the bill.

[Translation]

Mr. Stéphane Bergeron: Yes, Mr. Chairman. In reading the report of the Chief Electoral Officer, it can be observed that he makes a proposal...

[English]

The Chair: Mr. Bergeron, I appreciate you want to describe the amendment. The chair has had an opportunity to read the amendment and consider it. I find that the amendment is beyond the scope of the bill and it would not therefore be necessary to outline it.

We thus move on to the next amendment. We have an amendment, Mr. Bergeron, proposed by you, the insertion of a subclause 2(2), dealing with section...

Mr. Stéphane Bergeron: BQ-2.

The Chair: I have had an opportunity to read that amendment. It deals with removal from office of returning officers. It is my decision that it also is beyond the scope of the bill. Therefore, we won't put that, but I do thank you for raising the issue.

Mr. Scott Reid: I have a point of order, Mr Chair. For the help of those of us who are new at this and inexperienced, is it a rule of the House that permits chairs to decide on their own authority whether or not something is in the scope, as opposed to putting that to a vote of the committee?

The Chair: Yes. Democracy has its limitations.

Mr. Scott Reid: Horror.

The Chair: Someone, unfortunately, has to make a decision about these things, whether it's the Speaker in the House or the chair in a committee, and with the advice of the clerk and others, the chair makes those decisions. It's always possible for members to procedurally second—

Mr. Scott Reid: It's purely a question of privilege?

The Chair: Yes. And it is always possible to challenge a decision of the chair. So if a member feels it necessary to challenge the chair, it's not always invited, but it's probably always in order.

Let us move on. Mr. Guimond, on a point of order.

• 1230

[Translation]

Mr. Michel Guimond: Mr. Chairman, on the same theme, since you have spoken a sentence that will be consigned to history, and since democracy has its limitations, I would like you to give us the reference to the Standing Order that is your authority for this decision. Could we hear the wording of the Standing Order?

[English]

The Chair: It is the long-standing practice of the House and the committees that chairs make decisions about whether matters are in order or not in order. It is a long-standing rule of the House in dealing with legislation that amendments that are outside the scope of a bill in clause-by-clause consideration at committee are not considered at committee. A member would have a similar challenge in the House if a member were to propose an amendment that was outside the scope of the bill.

So the procedure of the chair in considering this issue in committee is virtually identical to the role of the chair in the House of Commons in considering these matters.

[Translation]

Mr. Michel Guimond: I find the Chairman's words very interesting, but we must remember that, when the Speaker of the House makes decisions, he does so pursuant to a written authority that is our set of standing orders. He does not do it simply on the basis of common law.

I would like you to tell us on the basis of which Standing Order you made that decision.

[English]

The Chair: I would refer the member to Standing Order 116, which allows us to apply in committee generally the same rules that exist in the House for this purpose.

[Translation]

Mr. Michel Guimond: Thank you, Mr. Chairman.

Mr. Stéphane Bergeron: Marleau and Montpetit, Mr. Chairman.

[English]

The Chair: I have referred Mr. Guimond to the Bible itself, to the ten commandments. There's no need to go to the commentary.

Marleau and Montpetit are very helpful as commentary, but when you have the ten commandments—

Mr. Stéphane Bergeron: Yes, but I'd like to know about it.

The Chair: I'm referring you to Standing Order 116, which is—

Mr. Stéphane Bergeron: For my own benefit, I'd like to hear it.

The Chair: The clerk is being very helpful and is very good at this. He and I would both refer you to page 654 of the version anglaise. Do we have it en français? It's the same page in the French version. It's page 654, chapter 16 of Marleau and Montpetit, that discusses the procedure.

However, I know both Monsieur Guimond and Monsieur Bergeron are very experienced members of the House and they simply wanted to ask these questions so it could be put on the record.

We're continuing then with our clause-by-clause consideration.

(Clauses 3 to 10 inclusive agreed to)

(On clause 11)

The Chair: We do have an amendment proposed by the Canadian Alliance. We'll go to the amendment of Mr. Reid. He proposed an amendment dealing with distribution of a copy of electoral lists.

It is the view of the chair that this amendment is also beyond the scope of the bill. It's certainly been discussed at committee, but it is not part of the bill itself. It attempts to amend subsection 109(2) of the Canada Elections Act. Subsection 109(2) is not part of our bill.

In my view, in the view of the chair, it is beyond the scope of the bill.

I'll note also that there's a similar amendment coming from the New Democratic Party. So I would rule that both these amendments are out of order for the reason I've given.

Ms. Davies, on a point of order.

Ms. Libby Davies: Chairperson, when you say it's beyond the scope of the bill, clearly this bill that's before us today, in clause 11, does deal with extra copies of the final voters' list. It seems to me that this is very much in the scope of the bill, because we are talking about the voters' lists then going to each candidate as opposed to four additional copies being sent to registered parties if they so request. I would like to understand why you believe it's beyond the scope of the bill, because I don't think it is at all.

• 1235

The Chair: I have to give you, Ms. Davies, and also the Canadian Alliance, some credit for being close—you're one subsection away—to being within the scope of the bill. The concept of turning over lists in the way proposed by the amendment is found in subsection 109(3) of the Canada Elections Act. We do have an amendment that we're dealing with, which is section 109(2) of the Canada Elections Act. Sorry, I have those reversed. We're dealing with 109(3); your amendment deals with 109(2).

Ms. Libby Davies: Then can I move a subamendment that this be a subsection of 109(3), which is before us?

The Chair: Yes, let me confer with the clerk. That may well be in order.

I'm going to rule that both of the original amendments proposed are out of order, but there's nothing to prevent the member from moving an amendment now to 109(3).

Ms. Libby Davies: I would do so. I would move an amendment to subsection 109(3) and incorporate the wording as a new subsection (4), as laid out in the amendment from myself and Mr. Reid.

Is that clear?

The Chair: The clerk would ask you to please repeat that so he could...

Ms. Libby Davies: If I understand what is permissible here, I would move an amendment that there be an additional section under subsection 109(3), that it be a new number (4), and that the wording be as outlined in the amendment we have submitted here today.

The Chair: All right. So that could be accomplished simply by adding at the end of subsection (3) that we're dealing with the words “and the Chief Electoral Officer shall deliver a printed copy”, etc., as outlined in the existing amendment.

Ms. Libby Davies: That would be fine.

The Chair: The clerk has concerns that the two contents do not appear to fit in the bill. I've suggested we add the word “and”. The conjunction then attempts to bring in the two into one subsection. It all deals with election lists. I'm not prepared to rule that it's out of order, but I'm prepared to put the question. If you would like to explain your amendment, I'll put the question, Ms. Davies.

Ms. Libby Davies: Thank you, Chairperson.

I do think it's an important addition to the bill.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I have a point of order.

The Chair: I'm sorry, Mr. Saada, on a point of order.

[Translation]

Mr. Jacques Saada: We are no longer talking just about an increase in the number of copies, but about changes to the recipients of the list. However, since the final lists are not produced until the end of the electoral process, they do not concern the candidates, but the people who were elected or defeated, as the case may be. Therefore, for these two reasons, I believe that the question is out of order.

[English]

The Chair: That may be a point, but the only question is whether this proposal is in order.

Mr. Jacques Saada: My point is that I would suggest it's out of order because of the reasons I just gave.

Mr. Stéphane Bergeron: But he ruled that it is in order.

Mr. Jacques Saada: My point is to raise a point of order.

Mr. Stéphane Bergeron: You're not supposed to challenge the chair—

Some hon. members: Oh, oh!

Mr. Stéphane Bergeron: —unless he challenges you to do this.

The Chair: I'm not totally intellectually convinced that it's out of order. I thought it would be simpler to put the question, and let the member propose the amendment and explain it.

Ms. Libby Davies: Thank you.

• 1240

The Chair: I can't find that the concepts are so totally inconsistent with one another that they couldn't live together in the same subsection. It's only a question of who gets the copies of the final lists. I don't know whether counsel has any comment on the operational integrity of the section. That does not have to do with whether it's in order or not.

Mr. Michael Peirce (Director, Legal Operations; Counsel, Legislation and House Planning; Counsel, Privy Council Office): That would create an absurdity to give the final list to candidates, because the final list is prepared, as was explained, only after polling day and there are no candidates after polling day. So it would create an absurdity.

The Chair: All right. Moving a step back from absurdity to whether it's in order, I suppose one could argue that to impose an absurdity on a section of the bill might well be by its nature out of order, and that's how many angels can dance on the head of a pin. Mr. MacKay gets the gold medal on that.

Ms. Davies, why don't you... I've already made a decision on this. Mr. Saada has interjected new reasoning. Maybe I could ask Ms. Davies to make a comment herself on whether or not and why this might be in order.

Ms. Libby Davies: Well, Chairperson, on the basis that you have made a ruling, I believe we should be now debating the merits of the amendment, not whether it's permissible. So on that basis, my comments will be on the amendment itself.

It seems to me that to refer to this as being absurd because the candidates don't exist... the fact is there is a record of those candidates. Although the minister had some questions about this, I think he also commented that he understood that this would be a provision that could be accommodated—although there were some concerns about privacy.

In fact, if it's the word “final” that causes other members to have concerns, I would be willing to suggest that we take it out. I think my intent here is to ensure that the smaller parties and candidates do receive information that is of legitimate—not illegitimate—use to them. That's really the point I want to make. I'd be happy to remove the word “final”, if that's the word that's hanging everybody up.

The Chair: No, I think we'll just put the amendment the way you've proposed it, Ms. Davies. You've given an argument, your reasons why—

Mr. Scott Reid: —

[Editor's Note: Inaudible]

—subamendment to the amendment that would in fact say something along the lines of “the last available voters' list prior to election day”, and I think that would solve the problem Mr. Peirce was referring to.

The Chair: Well, we're winding our way down a tunnel that has problems. I think it's better if I simply take Ms. Davies' amendment and put it.

(Amendment negatived)

(Clause 11 agreed to on division)

(On clause 12)

The Chair: I have two amendments on clause 12. One was Mrs. Parrish's amendment and it has been withdrawn. I have another amendment from the Canadian Alliance. It's their CA-2 in the amendments in front of you.

Mr. Reid.

Mr. Scott Reid: The purpose here is to get rid of the 50-candidate rule in order to allow for one-tier parties to exist in this country. I think there was widespread agreement among the witnesses who came before the committee—the leaders of the small parties—that there is virtue in having a number set above the number two that was proposed by Judge Malloy, but that 50 was a very hard barrier to hit in practice. It made it difficult for them to function. Mr. Gray, the head of the Christian Heritage Party, who actually serves on an advisory committee for the Chief Electoral Officer, found his party was in the throes of a deregistration process on account of having run slightly less than 50 candidates.

• 1245

Therefore, having heard the eloquent praise that the minister has put forward on behalf of the 12-candidate rule, and having heard the smaller parties—once again—reaffirm that the 12-candidate rule has some merit, and moreover, observing that the smaller parties, prior to the beginning of this whole process before this bill was introduced, also thought that 12 candidates had merit, it seems to me that it ought to be applied, not merely to the identifier on the ballot for the benefit of voters, but also to allow parties to exercise some of the other privileges. It will permit small parties to compete on a level playing field with larger parties such as the Alliance, the NDP, the Bloc Québécois, the Tories, or of course the Liberal Party of Canada.

Therefore, I would say there is considerable merit in considering this particular proposed amendment.

The Chair: All right.

Are there further comments?

Ms. Davies.

Ms. Libby Davies: Yes. I'd actually like to offer clarification, because unless I'm reading this wrong, when you read clause 12 as it is in the bill before us, it seems to me it's suggesting that you have to have at least 12 candidates registered for a general election. Then it says “or, in the case of a by-election, in the immediately preceding general election”. So would that not be the 12 as well?

The Chair: Mr. Reid's amendment, if I may clarify, appears to remove the reference to the by-election scenario.

Mr. Scott Reid: That's correct, Mr. Chairman.

The Chair: Thank you for that clarification. I'm sure it'll be helpful to members.

(Amendment negatived)

(Clause 12 agreed to on division)

(Clause 13 agreed to)

(Clauses 14 to 16 inclusive agreed to)

(On clause 17)

The Chair: There is an amendment from the Canadian Alliance, that is, CA-3.

Mr. Reid.

Mr. Scott Reid: This again refers to the whole question of restricting some of the rights accorded to smaller parties that are political parties under the bill, as it will be amended by C-9, but are not registered parties. This clause is all part of the attempt that I'm putting forward to remove the barriers between the privileges accorded to larger parties and to smaller parties, such as the Communist Party, the Christian Heritage Party, and others in their situation, or others that might come along.

Basically, privileges that are accorded to the larger parties include access to free-time advertising and also to paid advertising. Now in the case of this particular clause, it actually refers to the paid advertising that is made available. All broadcasters are required to set aside time, which the parties may then purchase. By restricting the access of smaller parties, we restrict their ability to speak and to present their views to the public, and perhaps to win support among the public. It may very well be that smaller parties have a legitimate case to make and that they will enhance the access of the public to the democratic process.

Certainly we find that is the case in the non-official parts of an election such as all-candidates debates, which are organized on an informal basis. I found in my own riding—and I know that other members, including Liberal members, who I have spoken to privately have agreed—that all-candidates meetings have been very profitable in educating members of the community.

• 1250

Of course, they reach a very small audience. Typically, in my own riding of Lanark—Carleton we had perhaps an average of 100 people at the all-candidates meeting. Obviously, these are community leaders and people who have an interest in the process. They tend to go back and speak to members of their communities and spread the word. But the access to broadcast as well would do a tremendous amount to allow them a greater capacity to reach those in the community who were not able to come to all-candidates meetings.

So I would suggest that on that basis a considerable privilege is being withheld—quite unfairly, I think—from those smaller parties simply because they have not fulfilled an arbitrary threshold, a threshold, I might point out, of which the minister gave no defence. He has been quite determined to remain silent on the veracity or the validity of the 50-candidate number. He defends 12 very eloquently. I think it would be in the spirit of the appeals court ruling and of what Mr. Figueroa believes in and has spoken of before this committee and in the spirit of what Canadians want for a truly free democracy to have an amendment of this sort go forward.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Reid. Mr. Jordan.

Mr. Joe Jordan: Do we have anywhere in this piece of legislation a definition of what a political party is, or does this open the floodgate for anybody?

The Chair: Since Mr. Reid's amendment uses the term, perhaps, Mr. Reid, you could refer us backward or forward to a definition of “political party”.

Mr. Scott Reid: I believe the definition of the term “political party” is in the very first clause of the bill. It reads:

1(1) The definition “political affiliation” in subsection 2(1) of the Canada Elections Act is replaced by the following: “political affiliation”, in respect of a candidate, means the name of the political party

So that in fact is the use of the word being introduced into the electoral act.

The Chair: Mr. Peirce, is there a definition for the term “political party” in the present act, as the concept is currently used?

Mr. Michael Peirce: That term is not defined in the act. It is used in a number of places in the act.

Mr. Scott Reid: Am I wrong, Mr. Peirce, in assuming that if this amendment as written were to be put in here, in fact the result would be that parties that have between 12 and 49 candidates would now have to be considered in having access to that advertising as laid out under the relevant section of the parent act?

Mr. Michael Peirce: Without having studied it, my initial view would be that it would not be limited to parties that have nominated at least 12 candidates because the term “political party” isn't defined that way. “Political party” is used in its generic sense, and then every specific usage is limited by the particular provision. So the political party name on the ballot is limited by the 12-candidate requirement.

Mr. Scott Reid: Mr. Chairman, that's a very good point, and I'd be very happy to change it to “all political parties that have nominated 12 or more candidates”, as the way this would then go forward in the bill.

The Chair: Colleagues, it's really difficult to amend legislation on the fly. So we simply can't say yes, that's a good idea, Mr. Reid. We really have to get it in writing. If you want to take a shot at it, I'd invite you to do it. I'll stand the clause down. Maybe you and your assistant can cobble together appropriate wording that would be clear enough for our purposes here and allow us to consider that amendment to your amendment.

Mr. Scott Reid: When you say “standing the clause down”, that means taking it aside.

The Chair: Yes, we're setting it aside, and we'll come back to it.

Mr. Scott Reid: All right. Thank you.

The Chair: Colleagues, we will come back to clause 17.

(Clause 17 allowed to stand)

(Clauses 18 and 19 agreed to)

The Chair: Unfortunately for Mr. Reid, we have another of his amendments, which is going to keep him from dealing with clause 17.

I'm now advised by the clerk that the proposed amendment is actually a new clause to be added after clause 20, so I'll simply put clause 20 first.

(Clause 20 agreed to)

• 1255

The Chair: Now we'll consider the amendment put forward by Mr. Reid to insert a clause, and that would be CA-4 in your amendments.

Now I have the unhappy task of advising Mr. Reid that having read through the clause, it is my decision that the amendment is outside the scope of the bill and cannot be considered.

Mr. Scott Reid: I'm running a little behind you, Mr. Chairman. We're on clause 20 on page 6.

The Chair: Yes. You wish to insert a new clause 20.1.

Mr. Scott Reid: That's right. That would be to allow for petitions outside of merely—

The Chair: This amendment appears to amend the conditions for becoming a registered party. As such, it is the view of the chair that it is outside the scope of this bill. This bill does not purport to change the terms and conditions of being a registered party. Therefore, while I'm sure it deals with an important and substantial public interest issue, it is outside the scope of the bill, and we cannot consider it now.

An hon. member: Turn it into an omnibus bill.

The Chair: Something like that.

Some hon. members: Oh, oh!

The Chair: So I'm going to rule that out of order.

You are free, Mr. Reid, to continue your work on clause 17.

(Clauses 21 to 23 inclusive agreed to)

The Chair: Ms. Davies, you want to insert a clause.

Ms. Libby Davies: Yes, I would like to insert a new clause 23.1. It is outlined here. It is one of the issues that was brought up by one of the smaller parties. I think it's a very important point. It seems ridiculous that if a candidate has surplus funds that they raised, they can't be used by their party and the money has to be returned to the Receiver General. This amendment would ensure it can be returned to their political party.

The Chair: Your comments are helpful in assuring the chair that, unfortunately, the amendment is outside the scope of the bill. This amendment purports to deal with the disposition of surplus electoral funds and various contingencies. Colleagues, as you all realize, that of course is outside the scope of the bill, albeit an important public interest issue. I'm sure it will come up when we consider Mr. Kingsley's reports.

Ms. Libby Davies: It's a very narrow bill.

The Chair: Yes, it's true, Ms. Davies, it is a very narrow bill. It's really a one-clause bill that somehow got turned into 27 clauses. In any case, it works for me.

(Clauses 24 to 27 inclusive agreed to)

The Chair: Monsieur Bergeron, did you have a point of order?

Mr. Stéphane Bergeron: No.

The Chair: Okay. Then—

[Translation]

Mr. Stéphane Bergeron: The various clauses that you submitted to our attention do not all deal with the same subject. I'm just trying to find the reasoning that led you to group them together in the way you did. Just give me a moment.

[English]

The Chair: It was only because I learned to count many years ago and I was able to do four at once. I'm happy to do them individually, if you wish. There is no logic other than mathematical sequencing. You'll be pleased, I know, that I was able to read them all in order, instead of randomly.

• 1300

(On clause 17)

The Chair: Mr. Reid, have you managed to prepare an amendment for clause 17?

Mr. Scott Reid: I've cobbled together something, as you requested, Mr. Chair. However, because we are all very respectful of the rules and the rules require that the clerks not circulate anything that hasn't been translated, I wonder if I could give it to the clerk for that.

The Chair: All members are fully permitted to operate in the language of their choice.

Mr. Scott Reid: Why was it a problem last time?

The Chair: This discussion is going to be out of order. It's quite permissible for you to put an amendment either in English or in French. You are incapable, probably, of speaking both languages at one time, so you've got to pick one when you're speaking, unless you have two mouths.

So you're moving an amendment. Would you care to read it?

Mr. Scott Reid: If you back me, I will. It would now say that Bill C-9, in clause 17, be amended by replacing lines 33 to 36 on page 5 with the following:

purchase by all political parties which have nominated 12 or more candidates for the transmission of political announcements and other programming produced by or on behalf of the political parties, six and one-half

I guess I should have added, Mr. Chairman, “of the political parties which have”, or “the aforesaid political parties”, or something like that, so as to make it clear that we're still talking about the parties with 12 candidates nominated. But the point here too is, I think, to deal with the concern that Mr. Peirce raised. I'm not sure—does that in fact take care of Mr. Peirce's concern?

The Chair: The problem is, Mr. Peirce doesn't have any macro-views on the legislation. He's here to give us legal advice on the...

Mr. Michael Peirce: As to whether it would technically function now, I think it would.

The Chair: Okay, thank you, Mr. Peirce.

(Amendment negatived on division)

(Clause 17 agreed to on division)

The Chair: Now I'll continue with the adoption of the bill. Now we're getting to the hard stuff.

Shall the title pass?

Some hon. members: Agreed.

The Chair: Shall the bill pass?

Some hon. members: Agreed.

An hon. member: On division.

The Chair: The bill carries on division.

Shall I report the bill without amendment to the House?

Some hon. members: Agreed.

The Chair: Well, colleagues, I think we just completed the bill.

Monsieur Bergeron, you have a point of order.

[Translation]

Mr. Stéphane Bergeron: Mr. Chairman, I had some discussion with you in the last few hours regarding the witnesses who came before the committee on Tuesday. For the benefit of the political parties who did not have the opportunity to appear before this committee, I would like you to explain the process which led to the appearance of these three political parties before the Committee on Procedure and House Affairs.

[English]

The Chair: Thank you, Mr. Bergeron. It's quite true, the question had arisen as to the manner of invitation of the witnesses from three political parties who attended our last meeting. What occurred was that those parties, through various members, had indicated a desire to appear. When the clerk was informed of this, the clerk made arrangements to facilitate their attendance. The clerk did not go out and seek political parties to come and appear. The appearance of those parties was a result of their indication, through members of the committee, that they would like to appear. Is that sufficient?

Mr. Stéphane Bergeron: Oui.

The Chair: Okay, thank you, Mr. Bergeron.

• 1305

Colleagues, we'll be back at some agenda item on Tuesday—I believe it could be Mr. Kingsley's report—and we're attempting to get a steering committee together.

Before I adjourn I want to thank the three officials who are here today. I neglected to introduce them, Michael Peirce, Roxanne Guérard, and Isabelle Mondou, who have played a role in the legislation. They've always been very helpful in our work around Parliament.

Thank you very much.

We stand adjourned.