:
Thank you, Mr. Chairman.
I'm pleased to appear before the committee again today to discuss the proposed referendum regulation and, more generally, the federal referendum system.
With me today are Mr. Stéphane Perrault, senior general counsel, and Mr. Jean-François Morin, counsel with our legal services.
Before dealing with the draft referendum regulation, I'd like to take a brief look at the referendum system as a whole. The current Referendum Act was adopted in 1992. Basically, it provides a mechanism for consultation on questions relating to the Constitution of Canada outside an electoral period. This act sets out rules that specifically govern the holding of a referendum. For example, it specifies the manner in which the referendum question is approved and the sequence of events that must take place before the referendum is called and held. It also sets out the rules for registration and funding of referendum committees and defines offences and penalties specific to a referendum.
But the Referendum Act defers to the Canada Elections Act for many of the more general aspects of a referendum, and assigns to the Chief Electoral Officer the task of adapting, by means of regulation, the relevant provisions of the Canada Elections Act. To guide the Chief Electoral Officer in this task the Referendum Act includes, in schedule II, a list of Elections Act provisions that do not apply to referenda. The draft referendum regulation that I submitted to Parliament on June 12, 2009, is the product of this adaptation exercise.
I would now like to draw your attention to certain issues that emerged as my office worked to update the referendum regulation. The first issue is the lack of synchronization between the statutes. There are many references in the Referendum Act, particularly in schedule II, to provisions of the former Canada Elections Act as it existed before the legislative reforms enacted in the year 2000.
The Referendum Act has never been the subject of a thorough review. Consequently, the referendum system has not kept pace with the legislative evolution of the electoral system, the result being that the two systems have become desynchronized, even though they should be complementary. It is therefore very difficult, even for the well-informed reader, to fully grasp which provisions of the Canada Elections Act are applicable in the context of a referendum and which are not. This is an important issue, since it undermines the clarity and precision that must characterize any legislative system.
There are other technical difficulties that could impede the effective administration of a referendum. For example, the Referendum Act precludes returning officers from appointing deputy returning officers and poll clerks who have not been recommended by the parties. This situation stems from a series of amendments made in 1996 to the Referendum Act and its schedule II when the Canada Elections Act was amended to establish the national register of electors. This could clearly become problematic, given the declining number of election workers recommended by the parties. As I mentioned in an earlier report, barely 33% of the workers are currently recommended by parties. If the act is not amended by the time a future referendum is held, I will work with the parties to find an appropriate solution.
ln a briefing note accompanying the draft regulation, I informed Parliament of two concerns relating to management of the lists of electors.
The first has to do with the transmittal of the revised and official lists to the deputy returning officers for the conduct of the vote. The second has to do with privacy risks as a result of the wide distribution of certain preliminary lists of electors to registered referendum committees. I would remind you that the adaptation for a referendum of subsection 93(1.1) of the Canada Elections Act would require me to provide an electronic copy of the preliminary lists of electors for all the electoral districts in the country or provinces where the referendum is held to each referendum committee that requests it.
For both of these concerns, there are solutions that involve legislative interpretation. With regard to the transmittal of the lists to the deputy returning officers, it should be remembered that schedule II of the Referendum Act, in its current form, precludes the returning officer from providing the deputy returning officer with the list of electors necessary to conduct the vote. However, another provision of the referendum regulation that sets out the list of election materials that must be provided to the DROs mentions that the returning officer is to provide the deputy with the list of electors. The list necessary for the conduct of the vote could thus be provided to the deputy returning officer under this incidental provision. This is not an ideal solution, but it would nevertheless resolve the problem.
As for the privacy risks, we plan to minimize them through stricter interpretation of subsection (10)(1) and schedule II of the Referendum Act. In 1992, preliminary lists of electors were provided about ten days before polling day. Today these lists correspond to the revised lists of electors. I will therefore be amending the draft referendum regulation so that it excludes all provisions providing for the distribution of preliminary lists to registered referendum committees, including subsection 93(1.1)
[Translation]
During my last appearance before this committee, I mentioned that the Director of Public Prosecutions Act does not expressly confer on the DPP the authority to launch prosecutions under the Referendum Act, contrary to what is the case for prosecutions under the Canada Elections Act. Parliament should explore a solution to this matter as the uncertainty regarding his authority could compromise the capacity to mount prosecutions in connection with a referendum.
The points I have brought up are of a mostly technical nature and could be resolved as part of a legislative review of the Referendum Act. Should you request it, I would be pleased to provide you with recommendations in this regard.
I will now address three aspects of the referendum system that raise policy questions.
The first concerns the funding of referendum committees. The controls provided for under the Referendum Act are comparable to those involving third parties during an election. In broad terms, any referendum committee must register if its expenses reach a set amount; its expenses limit depends on the number of electors in the districts where it will be active; it must appoint an agent and an auditor; and it must submit a financial return.
The federal system also allows the establishment of any number of committees to be created during a referendum campaign whether they are in favour or against the question that is the subject of the consultation. Each committee has its own expense limit.
This system has undergone no major alterations since 1992. It sets no limits for contributions and allows contributions from corporations and unions.
My authority to adapt election rules for the purposes of a referendum do not allow me to fundamentally review this system and bring into it the political financing rules applicable to elections. However, Parliament could choose to adopt such measures, as part of a legislative review.
A second policy aspect concerns the penalties for offences during a referendum. All these penalties are set out in the Referendum Act. However, they have not changed since 1992, unlike those for election offences, which were thoroughly revised in 2000. For this reason, different penalties apply to similar offences, depending on whether the offence was committed during an election or a referendum. This is another example of the lack of synchronization between the Referendum Act and the Canada Elections Act.
The third aspect involves inmate voting, a question I raised in my presentation on October 8. Under the current legislative framework, inmates serving sentences of two years or more are not eligible to vote in a referendum. This inconsistency is the result of two decisions by the Supreme Court of Canada: in Sauvé (2002), where the Court ruled it was unconstitutional to prevent these inmates from voting under the Canada Elections Act, and in Haig (1993), where the Court ruled that the constitutional right to vote in an election does not extend to referendums.
The three aspects I have just touched on raise policy questions that are not for me to address.
Adapting the Canada Elections Act for the purposes of a referendum is basically a technical exercise. As you can see, such an exercise is not sufficient to solve most of the issues I have described today.
That is why I believe that it would be desirable for Parliament to consider a legislative review. Such a review could be confined to resolving the technical difficulties arising from the age of the Referendum Act. If so, I would be pleased to provide the committee with my recommendations.
But the committee might want to undertake a broader review of the act and address policy issues such as those that I described or others that the committee identifies. It is not for me to voice an opinion on this subject, but if that is what the committee would prefer, it would be more useful for me to set aside my technical recommendations for a later stage of the review process.
Mr. Chairman, this concludes my presentation. Thank you for the opportunity to discuss this subject with the committee. My colleagues and I will be happy to answer your questions, and please be assured that we will take your remarks into consideration in the proposed regulations before finalizing them.
Thank you.
:
Thank you, Mr. Chairman.
Thank you for your presentation, Mr. Mayrand. I know this will disappoint you a great deal, but I don't have any questions to ask you.
Mr. Chairman, I believe it's possible to ask a question that isn't intended for the witnesses. In this case, it's for the parliamentary secretary to the government leader. I would like to know whether the government intends to propose a legislative review. With regard to this matter, that could be the factor triggering the next part of our work. I don't have any objection to us meeting to begin examining the question, but we would have to know where the government stands. The purpose of my comment isn't at all to trap the government. Every time I speak, you think I have hidden intentions and that I'm going to pull out a bazooka.
Mr. Mayrand, in the second paragraph on page 10 of your presentation, you say: “That is why I believe that it would be desirable for Parliament to consider a legislative review.”
Mr. Chairman, if, through you, Mr. Lukiwski is able to tell us whether the Privy Council officials and legal experts have begun to draft a bill containing provisions to that effect, we could determine whether everything here is covered or whether we want to make amendments, make additions. If that's not among the legislative priorities, it might be appropriate for us to examine the act and then suggest amendments to Parliament.
:
All right. At that time, the power to make changes or to amend the act without having to resort to Parliament was given to Elections Canada by means of regulations.
I will side with Mr. Guimond.
Mr. Lukiwski, you say we should do the study, then the presentation. I'd have to take a look at where we've gotten with that. I remember that we conducted one study, for example, on electoral boundaries. We did a major study on that subject. I would have to see whether we did anything after that.
If we take the trouble to conduct a study, it would be good for the government to be in the mood to make a change as well. You shouldn't make a committee work for months and months without a bill emerging at the end of it. It's always better to know that the government wants the same thing, that is to work on this part of the act to adapt it to the situation today.
It would be good to check with the government. Then, having made the check, we could start a study. Perhaps that's putting the cart before the horse, but, on the other hand, it's good to know where the government is headed with this.
I was going to say two things.
In terms of other models to look at, obviously there are some provincial models in Canada. But the most useful examples are obviously the ones that are parliamentary governments, like Canada's. While the Swiss have an interesting and very distinguished record with referendums, there are some substantial distinctions, and similarly with referenda in assorted U.S. states. I used to live in Washington State. Typically, they had a number of referenda at the same time. There are some useful things to learn. But the best examples, I would think, would be in Australia, particularly since in Australia their referenda are mandatory for constitutional amendment--the Referendum Act is assumed to apply to constitutional amendments, as opposed to ordinary legislation--and New Zealand. They would be the two that seem to me to have the most relevance for our situation. So that was one thought I wanted to put out there.
The second thought I wanted to put out for the benefit of committee members is I used to be a staffer here, and I remember there's a mandatory legislative review of the Referendum Act, which was dealt with in.... I've actually used this as a metaphor for everything that's wrong with mandatory legislative reviews. It was dealt with in less than one minute in this committee back in the 1990s, and dealt with in such an obscure fashion that it wasn't until several years afterwards--I was working on Parliament Hill--that I figured out that it actually had been dealt with at all. So there's an absence. It's something that should have happened. That it was mandated by law was honoured in theory but not in practice. It would be a good idea, I think, to come back and do that.
A final thought is if we're going to take over the regulations, regulatory function, from the Chief Electoral Officer, once it's been recommended, I would say we would probably want to make sure that the regulations not simply be done by means of the government issuing them, but that there be some kind of review in committee of those regulations prior to their adoption.
In a sense, it would reverse the role, but if you looked at it in this committee, Mr. Mayrand would be brought in and asked questions prior to rather than after the fact. I think that would be beneficial. There is a reason why we don't have regulations under our electoral law: it's so that the party in power can't manipulate them. I think the same thing would apply to a lesser degree but nonetheless would apply to some degree to a referendum. It would be valuable to make sure that they can meet the sniff test before they go into effect.
:
Now that we've started to disregard the Standing Orders, let's continue.
This is interesting since we have a little time and it's worth it to use Mr. Mayrand's knowledge while he's here. At the same time, it gives the committee a chance to discuss the subject. I was talking about this problem with Mr. Lukiwski earlier.
I agree with Mr. Guimond; a major study has been conducted. As I was saying, we mustn't do any work for nothing, without knowing whether the government is ready to move the bill forward. We've conducted a major study on this; we've worked months and months, but we have to remember the reason for this study.
In the last commission, it was the first time in Canada that this kind of case wound up in court, and the court decided. For example, in the riding of Acadie—Bathurst—those who were here may remember it—Elections Canada had taken a group of francophone voters from the Acadie—Bathurst region and transferred them to the Miramichi region. The people protested loudly; it was incredible. There were demonstrations; postcards were sent to the Speaker of the House of Commons. He answered that he did not work at Elections Canada. There were all kinds of things. The case went to court and the court ruled that there had been a violation on the grounds of a community of interest. The community of interest means something; it isn't just figures. In the way the commission saw it, if there were 80,000 persons in one riding, its neighbour should have roughly the same number. In Elections Canada's view, it's unacceptable for one riding to have 86,000 persons and another 52,000. So the decision was made to take those people and throw them into another riding. That's when the court said that there was no community of interest between the two.
I'm going to come back to what I was saying. We conducted a study on the subject and submitted recommendations. That's one thing, Mr. Chairman, that I would like us to consider again because there was a report in the House. We could add it to the committee's work or, in the steering committee, we could consider examining it as part of future business. We should start studying that in advance. Mr. Mayrand says that new figures will be published in 2010 and 2011. So this is a project we should undertake now to make sure we have regulations. Things didn't go well at that time. All the political parties were unanimous on those recommendations.