Thank you, Madam Chair.
I'm pleased to appear today to speak on Bill C-20, the Senate Appointment Consultations Act.
Bill C-20 represents a significant change from at least three perspectives. First, it potentially represents a major reform of Canada's parliamentary institutions by creating a method of consulting Canadians on the recommendation for the appointment of senators. Second, it represents a significant electoral policy choice through its proposed use of a single transferable voting system for the first time at the federal level. Finally, the bill can be seen as raising novel administrative and operational issues related to the conduct of a democratic consultation in conjunction with a federal or provincial electoral process.
My focus today will be on the latter perspective, the administrative and operational issues raised by the bill.
My intent is to raise some matters that the committee may wish to consider in its discussions respecting the bill. In addition, my office has identified other areas that the committee may wish to review for possible amendment.
With your permission, Madam Chair, I will leave a list of all these issues with the members of the committee at the end of my appearance. Since I will not discuss them, I would ask that they be entered into the record of the deliberations of the committee. Thank you.
There are three key matters that I wish to raise for the committee's consideration. First, I will point out the substantive challenges that could be encountered if a consultation were held in conjunction with a provincial election. Second, I would like to discuss the complex problem of harmonizing the existing political financing regime in the Canada Elections Act with that created for Senate consultations. Third, I wish to share with you my concerns about the operational feasibility of the coming into force provisions of the bill.
Before I do that, however, given the novelty, in Canada, at least, of the STV voting system, I will give a very brief description of this voting system.
STV allows electors to rank the candidates in multi-member districts. They do so by indicating their preferences—one, two, or three, and so on—on the ballot beside the names of the candidates. The result is determined through a series of counts. At the first count, candidates who have collected more than a specified quota of first preference votes are immediately selected. This quota is based on the number of available seats and the number of valid votes.
In second and subsequent counts, all votes of elected candidates in excess of the quota are redistributed according to a weighted formula to the next available preference on the ballots.
If after any count no candidate has obtained the quota, the candidate with the fewest ballots is eliminated, and his or her ballots are redistributed to the next available preference. The process continues until all available seats have been filled.
The application of the process is not as easy as its description and there are many complicating details, but what I have provided here is a simple overview of how STV works.
Going back to areas of concern, the first matter I would like to discuss is the possibility that a Senate consultation may be held in conjunction with a provincial election. If such a consultation is to take place, the Chief Electoral Officer is authorized by the bill to enter into an agreement with the provincial electoral body. In that case, he would be required to adapt an element of the Senate Appointment Consultations Act for the purposes of holding a joint event.
If an agreement cannot be reached, two separate processes would be held on the same day in different polling locations, using different workers and applying different rules. This does not appear to me to be a viable option, and it would likely create elector confusion and frustration.
It would therefore be essential to reach an agreement with the provincial electoral body. To achieve such an agreement, it is very likely that the province would require that the Senate consultation run according to rules that are as close as possible to the provincial election rules, including those regarding residency requirements, identification at the polls, polling day registration, vote counting, and political financing.
For example, as no province currently uses STV, such a consultation would likely not take place using that voting system if held during a provincial election. This would also mean that the Senate consultation process could be conducted differently depending upon the province in which it is held. This is something that may be acceptable from a policy perspective and on which I express no opinion. However, decisions as to how to adapt important federal rules to allow their implementation by provincial authorities could result in controversies and possibly legal disputes. As I said earlier, I do not believe this is a viable solution.
Rather than providing for a regime that requires a complex mixing of federal and provincial electoral laws, it may be better to provide in the bill that a consultation process be held according to federal rules, except in a case where a province has legislation that creates a process for a consultation. If such a provincial statute exists, such as Alberta's Senatorial Selection Act, the consultation would be conducted by provincial electoral authorities in accordance with provincial law.
The second matter I wish to highlight is the political financing regime created by the Senate consultations and the impact those rules may have on the existing political financing provisions found in the Canada Elections Act.
Much has been done in the bill respecting the challenge of harmonizing regimes for the two events that will, in many cases, take place at the same time. For example, many of the financing rules in Bill C-20, including those related to the disclosure of financial transactions, would mirror those imposed on candidates during an election campaign. In addition, the bill seeks to prevent contributions to a Senate nominee from flowing into the electoral process by providing that surplus funds of nominees must go to the Receiver General.
However, there are some areas in which the financing regime proposed by Bill C-20 may not be in harmony with the existing political financing law. If it is the will of Parliament that there be no spending limits for the campaign of Senate nominees, as proposed in Bill C-20, it would be important to minimize the impact the proposed financial regime could have over the one governing elections.
Spending by nominees could impact the political financing regime in the Canada Elections Act in several ways. For example, the fact that there is no prohibition against a person being both a candidate under the Canada Elections Act and a nominee in a Senate consultation raises the possibility that unlimited spending under the Senate regime could undermine the candidate spending limits for a person registered as both a nominee and a candidate.
Similarly, there is nothing preventing a person who is running as a candidate in an election from registering as a third party in the Senate campaign. Doing so would allow for spending over and above the candidate's spending limit.
I also note that although, for the most part, the bill seeks to impose a distance between political parties and nominees, subclause 87(2) provides that registered parties and registered electoral district associations may transfer unlimited goods and services other than advertising to nominees. The capacity to pass goods and services to nominees again brings into question the efficacy of party spending limits.
Finally, difficult questions may arise as to the appropriate treatment under the two laws of spending by a Senate nominee who promotes his or her party platform. It is not my intention to suggest that the political finance rules of Bill C-20 must be the same as those of the Canada Elections Act. While we must recognize that perfect symmetry is not possible, Parliament may wish to ensure that the rules for Senate consultations do not have an unintended impact on the financing regime under the Canada Elections Act.
This appears to be the intent of the bill, and I would offer the following points for your consideration to stimulate discussion as to how best to achieve that intent:
(a) consider prohibiting a person from being a registered Senate nominee and a candidate in a federal general election at the same time;
(b) consider prohibiting a candidate from incurring advertising expenses as a third party in a Senate consultation held at the same time as the election in which he or she is a candidate;
(c) consider ensuring that the provisions relating to collusion and prohibiting various entities working together to circumvent spending limits are sufficiently strong in the bill and in the Canada Elections Act; and, finally,
(d) consider prohibiting all non-monetary transfers from registered parties and associations to Senate nominees.
A third matter I wish to raise today is the operational feasibility of the coming into force provisions, as provided in the bill. The requirement to prepare for Senate consultations will be a substantial undertaking which we will need to accomplish in addition to our ordinary activities, which include always being prepared for a general election.
New tools and systems will need to be developed to conduct the consultations and to support an electronic method for counting the ballots under the STV system. In addition, we will be developing training materials and an information and education campaign for parties, other participants and, especially, the voting public.
I anticipate that these problems can be dealt with and that the appropriate systems can be designed. However, I have concerns about the feasibility of doing so within the two-year period. We asked IBM Canada to conduct an external review of the technological developments required, given the implementation timeline provided for in Bill C-20. The firm concluded that a two-year timeline has an extreme risk of failure. On the other hand, it found that a three-year timeline for implementation appears achievable. A three-year coming into force period is therefore essential to Elections Canada to ensure the success of this endeavour.
The coming into force provisions also provide for an interim form of consultation that may be held in a period between one and two years after royal assent. An interim consultation would use a multi-member plurality voting system—that is to say, one in which electors do not rank nominees, but simply place an “X” besides the applicable number of nominees.
As such, Elections Canada would also be required to design systems and materials, and conduct voter education campaigns in preparation for this potential event, at the same time as preparing for the coming into force of the preferential balloting system. There would be a need to prepare for an interim consultation, even though there is no certainty that one would be held during the interim period. The resources required to prepare for one type of consultation would reduce those available for preparing for the full coming into force of Bill C-20.
In my opinion, the impact on readiness for other events, the confusion caused to electors and the cost of preparing for an event that may or may not happen in a one-year window, do not justify this interim method.
I would therefore recommend that the interim method of holding consultations be removed from the bill.
In addition to the three key matters already discussed, I wish to raise two other points for the consideration of the Committee—one, more encompassing, and the other, more technical.
The first relates to the fact that, in many instances, the bill states that key provisions of the Canada Elections Act shall apply to a Senate consultation with any adaptations as are necessary. For example, clause 46 states that the ordinary, advance and special voting provisions of the Canada Elections Act apply with such adaptations as are necessary. Clauses 95 and 96 provide that many of the political financing provisions of the Canada Elections Act apply to a Senate consultation with any adaptations as are necessary.
I understand and agree with the approach that many elements of the Canada Elections Act are to apply to Senate consultations. To the extent that the rules of the Canada Elections Act are well known and respected by participants and Canadians at large, the choice to apply the same rules to a Senate consultation is required and will simplify the administration of both types of events. However, the nature of the instrument by which these rules will be made raises concerns. Indeed, the bill does not provide for any legal instrument, such as a regulation, in which these fundamental rules, as adapted to the circumstances of a Senate consultation, will be made known.
A relatively simple fix to this problem is the approach taken in the Referendum Act. Section 7 of that Act gives the Chief Electoral Officer the authority to make a regulation adapting the Canada Elections Act for the purposes of a referendum. Once made, that regulation is referred to committees of both houses for their comments. The creation of a legal instrument codifying the rules applicable to a Senate consultation would reduce potential confusion or uncertainty. This is desirable for many reasons, but perhaps most important when one considers the matter of enforcement.
Indeed, the Commissioner of Canada Elections has raised concerns with me about the impact of the uncertainty engendered by the absence of a document that has the force of law, setting out the offence and its punishment in the context of a consultation. I therefore recommend that, if Parliament wishes the Chief Electoral Officer to adapt the Canada Elections Act for the purposes of a Senate consultation, a regulation-making power similar to that found in section 7 of the Referendum Act be created to achieve certainty in the law and ensure its enforceability.
The final point I wish to raise today relates to clause 33, which requires the Chief Electoral Officer to compile and distribute information about nominees in the form of an elector guide. The publication of this guide may, in some cases, oblige Elections Canada to become the arbitrator of its contents. There is a fine line between what is perceived as the mere provision of information, and what may be perceived as advocacy. Elections Canada's responsibility for publishing this guide may, therefore, affect perceptions of its neutrality. I would ask, consequently, that this responsibility not be entrusted to Elections Canada. To the extent that the publication of this guide is intended to reduce the costs a nominee faces in making his or her message known throughout the province, an alternative solution might be to provide a subsidy, such as reimbursement of this particular expense to nominees.
In conclusion, I wish to emphasize, once again, that the implementation of Bill C-20 is a significant challenge, but one that I am fully prepared to undertake. That said, the complexities of the proposal should not be underestimated. As this Committee is only beginning its study of the matter, and as the bill has been referred after first reading, I have not gone into details about technical drafting and implementation issues, or the costs of implementing this bill. I would, of course, be happy to come back to discuss these or any other matters when the Committee is more advanced in its study of the bill.
That concludes my remarks, and I would be happy to take your questions. Thank you.
