Procedure and House Affairs Committee on Sept. 26th, 2006

[The Chair, Conservative, Gary Goodyear]

Good morning, everyone, and thank you for coming this morning.

I would like to remind members that this meeting will be held in public today, so please remember that.

The purpose of the meeting today is to begin our discussions on Bill C-16, An Act to amend the Canada Elections Act. We have a lot of ground to cover today, so I ask for the committee's diligence. We've invited the Government House Leader and his officials to appear today at this meeting. As well, we have invited the Chief Electoral Officer to appear following the minister.

I also remind the members that at our business meeting last week we agreed that the questioning rounds would be limited to five minutes. I will be watching and trying to assist committee members in keeping their questions short so that we can actually leave ample time for answers from the witnesses, as that, of course, is the point. As usual, our round of questioning will begin with the Liberals, then the Conservative Party, then the Bloc and the NDP, each having five minutes. We will certainly keep track, or try our very best to keep track, of members who have put up their hands. Please make sure you leave your hands up until either the clerk or I see you. That way we won't miss anyone at all.

The only other thing I want to mention is that we have divided the time. If necessary, the minister will have the first hour, if in fact that is needed, and be followed by Mr. Kingsley, who will take up the balance of time if that much time is necessary.

Finally, I'm going to ask for five minutes of committee time at the end to discuss future business.

That just gives you an idea of how I would like to conduct the business of the meeting today.

Without any further ado, I'd like to take this opportunity to welcome the Honourable Rob Nicholson. I appreciate your taking the time on such short notice.

As members know, Mr. Nicholson is the Leader of the Government in the House of Commons and Minister Responsible for Democratic Reform. He is also, of course, the sponsor of Bill C-16. Minister, I thank you very much for taking time out of your busy schedule to appear before the committee today to discuss Bill C-16. I would like to ask you to start by introducing your team. Then, by all means, go on with your opening statement, and we'll follow that with questions.

[Rob Nicholson, Leader of the Government in the House of Commons]

Thank you very much, Mr. Chairman.

With me are Warren Newman, who is general counsel for constitutional and administrative law; Kathy O'Hara, deputy secretary to the cabinet, machinery of government; and Dan McDougall, director of operations, legislation and House planning.

Good morning, colleagues. I'm very pleased to appear before your committee to talk about Bill C-16 relating to fixed election dates. I will begin by describing the present system for calling general elections and I will mention some of the difficulties it creates.

I also want to talk about why the government chose to draft the bill the way it did, and why the route we took was both necessary and effective.

Finally, I would be happy to respond to any questions.

Today, as you know, it is the prerogative of the Prime Minister whose government has not lost the confidence in the House of Commons to select what he or she regards as a propitious time for an election to renew the government's mandate. The Prime Minister then requests dissolution of the House from the Governor General, and if the Governor General agrees, he or she proclaims the date of the election.

What we have is a situation where the Prime Minister is able to choose the date of the general election--not necessarily what is in the best interests of the country, but conceivably what is in the best interests of his or her party. Bill C-16 will address this situation and produce a number of other benefits.

As set out in the government's platform, this bill is modelled after existing provincial fixed-date elections legislation. The legislation is similar to the approach used by British Columbia, Ontario, and Newfoundland and Labrador. British Columbia just had its first fixed-date election on May 17, 2005. Ontario, and Newfoundland and Labrador, will soon have their fixed-date elections October 4, 2007, and October 9, 2007 respectively.

In British Columbia, there was certainly no evidence of what some critics have called a lame-duck government, and certainly no evidence that the legislation was in some way illusory or ineffective.

The government's bill provides that the date for the next general election will be Monday, October 19, 2009. Of course, this will be the date only if the government is able to retain the confidence of the House until that time. This bill does not affect the powers of the Governor General to call an election sooner if a government loses the confidence of the House. For example, if the government were to be defeated tomorrow, a general election would be held according to normal practice; however, the subsequent election would be scheduled for the third Monday in October in the fourth calendar year after the next election. That is the normal model that would be established by this bill. General elections would occur on the third Monday of October in the fourth calendar year following the previous general election.

We chose the third Monday in October because it was the date that was likely to maximize voter turnout and the least likely to conflict with cultural or religious holidays or elections in other jurisdictions. This raises an additional feature of the bill that I want to bring to your attention, which provides for an alternate election date in the event of a conflict with a date of religious or cultural significance, or an election in another jurisdiction.

In the current system, the date of the general election is chosen by the government, so it is rare that a polling date is chosen that comes into conflict with a date of cultural or religious significance, or with elections in other jurisdictions. However, with the introduction of legislation providing for fixed-date elections, there is some possibility that in the future the stipulated election date will occasionally be the same as a day of cultural or religious significance, or an election in another jurisdiction.

The Ontario fixed-date elections legislation provides that if there is a conflict with a day of cultural or religious significance, the Chief Elections Officer may recommend an alternative polling date to the Lieutenant Governor in Council up to seven days following the date that would otherwise be the polling date.

Using a variation of the Ontario legislation providing for fixed-date elections, our bill empowers the Chief Electoral Officer to recommend an alternate polling day to the Governor in Council should he or she find that the polling date is not suitable for that purpose. The alternate date would be either the Tuesday or the Monday following the Monday that would otherwise be the polling date. Allowing alternate polling days to be held on the following Tuesday or Monday is consistent with the current federal practice of holding elections on a Monday or a Tuesday.

Fixed-date elections will provide numerous benefits to our political system. With fixed-date elections the timing of general elections will be known to all, which will provide for greater fairness. Instead of the governing party having the advantage of determining when the next election will take place and being the single party that may know for up to several months when it will occur, all parties will be on an equal footing.

Another key advantage of fixed-date elections is that this measure will provide transparency as to when general elections will be held. Rather than decisions about election dates being made behind closed doors, general election dates will be public knowledge. I think they will allow for improved governance. For example, fixed-date elections will allow for better parliamentary planning. Members of parliamentary committees will be able to set their agendas well in advance, which will make the work of committees and Parliament as a whole more efficient.

Another reason for adopting fixed-date elections is that this measure will likely improve voter turnout because elections will be held in October, except when a government loses the confidence of the House. The weather is generally favourable in most parts of the country at that time of year, and fewer people are transient. So for example, most students will not be in transition between home and school at that time and will be able to vote. Moreover, seniors will not be deterred from voting, as they might in some of the colder months.

Now, it should be noted that the weekend before the third Monday in October is Thanksgiving weekend. This would be the weekend of advance voting, as advance voting is set in the Canada Elections Act for the tenth, ninth, and seventh days before polling day. That would be the Friday, the Saturday, and the Monday prior to the election date. I believe that having Canadians discussing the general election during part of a Thanksgiving weekend is not a bad thing. And if some Canadians wish to spend a few minutes voting in advance polls that weekend, all the better.

For your information, only 10.5% of those who voted in 2006 voted in the advance polls, while 2.8% voted either at a returning office or by postal ballot. The vast majority of voters, 86.7% in 2006, cast their votes on polling day. So those who would have to staff the advance polls, which are open from noon until 8 p.m. in fewer than 3,000 locations, would be aware of this responsibility before they accepted the position.

Some members have indicated that the bill is illusory in that the Prime Minister can call an election at any point up until the fixed election date. All I can say is that this view does not reflect the way our system of responsible government actually works. The Prime Minister has to retain his or her prerogative to advise dissolution to allow for situations when the government loses the confidence of the House. This is a fundamental principle of our system of responsible government.

It has been suggested that the government should insert a clause into Bill C-16 constraining the Prime Minister's ability to request dissolution of Parliament to certain circumstances. Let me be clear. Including a clause that attempts to constrain the Prime Minister in requesting dissolution of Parliament would, in our view, present a risk, which we should not ignore, that the legislation would be found unconstitutional if challenged in the courts. Why? Under the rules and conventions of responsible government, the Governor General's power to dissolve Parliament has to be exercised on the advice of the Prime Minister. The Governor General's legal power under the Constitution and the exercise of that power on the advice of the Prime Minister are fundamentally and inseparably linked. If one limits the Prime Minister's ability to advise, one risks constraining the Governor General's powers in a way that would be unconstitutional.

An amendment in relation to the powers of the Office of the Governor General would require, of course, the consent of the Houses of Parliament and of the legislative assemblies of all provinces, and I think with respect to this piece of legislation, it is unnecessary and unwanted.

It has also been suggested that governments should insert a clause into Bill C-16 that would define very specifically what constitutes a vote of confidence. This would, it is argued, prevent governments from engineering their own defeat in minority situations. Again, constraining the Prime Minister's power to advise the dissolution of Parliament except in certain circumstances would risk being declared unconstitutional and fettering the Governor General's powers. Moreover, if the bill were to attempt to define confidence or to provide criteria for when confidence is lost, the whole concept of confidence itself would risk becoming justiciable in the courts, something that would run contrary to the fundamental constitutional principle of the separation of powers between the legislative, executive, and judicial branches and the appropriate role of the courts in our constitutional system of parliamentary democracy.

The government has followed the broad approach of British Columbia, Newfoundland and Labrador, and Ontario, which is an approach that works. If one looks for other examples within the British parliamentary system where fixed-date elections are in place, such as New Zealand, Scotland, and Wales, none of them has provisions like the ones that have been suggested by certain members at second reading.

The government is committed to making this modest but important change to improve Canadian democratic institutions and practices, but this change must be done in a way that is respectful of our Constitution, our great heritage, and the principles of responsible government.

In conclusion, I would like to point out that the third week in October is National Citizenship Week in this country, a time when we celebrate what it means to be a citizen of Canada. It is fitting, then, that the general election date will be set for the third Monday in October--a most fitting and functional expression of our citizenship.

Fixed-date elections will provide for greater fairness, increased transparency and predictability, improved policy planning, and, I believe, increased voter turnout. In June of this past year, Ipsos Reid released the results of a poll that showed 78% of Canadians support government's plans to provide for fixed-date elections. I hope you will join me in voting in favour of this important and widely supported measure.

Thank you, Mr. Chairman.

[The Chair, Conservative, Gary Goodyear]

Thank you, Minister. I appreciate all the comments.

Now we'll open our first round of questions. Again, I remind members that we agreed to five-minute rounds starting with the Liberal Party.

I don't have any names from the Liberal Party. Is there a spokesperson?

Mr. Owen, I will let you go as long as you want, but I'm going to try to keep the questions short so that we'll have more time for answers. This is just a kindly reminder.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Chair. I'll try to make this as brief as possible.

Welcome, Minister, and thank you for your opening remarks.

My question is quite specific with respect to proposed subsection 56.1(2). I'm looking for your assessment of the effectiveness of this proposed subsection. It really sets out in this wording two propositions that appear to be internally inconsistent, and therefore, as a matter of statutory interpretation, I'm wondering whether the proposed subsection would actually be voided because of uncertainty. As you see, it reads, “general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election”, and then it goes on to set that date as October 19, 2009. But of course, in the fourth calendar year after the last general election it would be the third Monday of October 2010, not 2009.

I'm wondering what the impact of that might be.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We had a couple of thoughts, Mr. Owen, with respect to that.

It seemed to me that if we set the first possible election date in 2010, the voters would have had a period of time of almost five years since the prior election, and the somewhat unusual circumstance that the past election was held in January. So we felt that for the commencement of this legislation coming into effect, we would identify the first election as October 19, 2009, which admittedly is a little bit less than four years.

But again, these are fixed dates for the elections, and the term itself will not be identical in the case of a minority Parliament. It begins then, but it would roll over, presuming, for instance, that there was a majority government, exactly four years beyond October 19, 2009, unless of course we were into another minority situation. Then you'd be back into this.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I assumed that was the intention. I'm concerned not with the intention, which seems sound to me, but only with the actual legal effect of the proposed section worded as it is, which appears to be internally contradictory. I wonder if there's a--

[Rob Nicholson, Conservative, Niagara Falls, ON]

It may be. As I said, in the election after this, this section comes into force. I think it's fair to identify when the first one is. All things considered, if this Parliament lasted until October 2009, that would be one thing--and we could debate the chances of that--but it seemed to me that to set it almost five years after the last one.... It was not as good an idea as four years.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I have no difficulty with actually setting the date. It just seems to be inconsistent with the other half of the clause. I'm just wondering whether it will have legal effect or not. Can we actually achieve what you're trying to achieve with this wording? It's really graphic, but--

[Rob Nicholson]

I believe we can, but perhaps I'll have Mr. Newman comment, if you don't mind.

[Warren Newman, General Counsel, Constitutional and Administrative Law, Department of Justice]

Thank you, Minister, and to the chair, and Mr. Owen.

It will have legal effect. At face value, it's quite clear what the clause is attempting to achieve. It is setting a rule that will, of course, recur henceforth with a tail end that is, in a sense, the start-up of the provision. Once 2009 comes around, assuming the legislation operates according to plan, that part of the provision will simply be spent thereafter. I think the legislative intent is, on its face, quite clear that the general rule will be that every four years there will be an election on the third Monday of October, but for the first election, for the reasons given by the minister--and he has contextualized them--this particular date, which occurs before the four-year mark, has been chosen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I put on the record only that I don't at all dispute the intention. I do have some real questions on the legal implications of it. I'd hate to see us, as a Parliament, come to a conclusion that this is appropriate and then have our intention challenged on a legal and statutory interpretation basis.

[The Chair, Conservative, Gary Goodyear]

We actually had seven seconds left in that round, but I think you'll agree that we can't possibly use them.

I'm going to move on to the Conservative Party--

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Go ahead, take them.

[The Chair, Conservative, Gary Goodyear]

--and I have Mr. Preston.

Mr. Preston, go ahead, please.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

Mr. Minister, Bill C-16 sets the elections on the third Monday in October every four years, commencing in 2009. You stated in your remarks that the time will not conflict with any holidays or anything they can call then. I find it very appropriate that you stated that National Citizenship Week is the third week in October, and I think that's a great time to have elections.

You did then go into a little bit about how Thanksgiving might conflict with the advance polls. Can I first of all have your assurances that there are no conflicts with the part about the third Monday? Then could you talk a little bit more about how we think Thanksgiving may conflict in some of the years when Thanksgiving is that late in the year?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't think there would be a conflict between Thanksgiving and the date of the federal election, since Thanksgiving is the second Monday in October.

Getting back to the first part of your question, we looked at the different seasons and the different months in which an election could be held. We used a process of elimination. There were valid reasons why we might not want to have it in winter or the summer, so that leaves you with the spring and the fall. There is the estimates process, during which estimates are tabled in the House of Commons, and there is the studying and the budgetary process of the Government of Canada. It seemed to suggest that the fall would be a better time.

That being said, the department considered all reasons that this might not be a good date in terms of various religious or cultural feast days, or holidays, or days of recognition. It seemed to me that this one in particular would work. I have indicated to you that there is some flexibility. If some time in the future there is some reason why that Monday wouldn't be perfect, the Chief Electoral Officer could recommend that it be moved to the Tuesday or to the following week.

That being said, because of the provisions of the act, the advance poll would take place approximately one week before that, which would mean at Thanksgiving. Quite frankly, I can't think of a better time to find Canadians at home if they have to vote in the advance poll. If they're not going to be home on election day, it's probably highly likely that in fact they might be there on the Thanksgiving weekend. Our job is to facilitate Canadians' voting, which they have a right to do, and to make it as accessible and easy as possible. So I think having an advance poll would work, and I think that was one of the other advantages of this piece of legislation.

We wouldn't want to go any further into the year, in case the suggestion to do so is made. If we made it one week later, you could have the conflict that you had last year, for instance, with Halloween. We wouldn't want the chaos that might result on Canadian streets, with millions of people going out in their cars, and kids going door to door, and that sort of thing. This date seems to work, and I hope it's the one that Parliament will accept.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

Along those same lines, you mentioned that the level of voter apathy has been growing in Canada, and I tend to agree with you. Could you give me your views on how you feel that fixing the election date to the third Monday in October will also help with the process of voter turnout?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I guess if people can plan when they're going to vote, that is a benefit. I think all of us have had people over the years tell us how they want to make plans to go away, but they're conscious of their responsibility to vote as Canadian citizens. I remember individuals asking me, in the fall of 1988, when the election was going to be; they were going away and didn't want to miss the election. I told them that as a backbencher I wasn't privy to that information. Very few people knew exactly when, or even if, the election would have been called in the fall of 1988. So in terms of people planning their lives, I think it would be helpful for them to know when an election is going to take place.

In terms of voter apathy, Canadians, when they get motivated, get out to vote. In the election that took place in January, despite predictions to the contrary, the voter turnout was greater than it had been in the 2004 election. If people get motivated and want to come out to vote, they'll vote. But I think we should accommodate them to the extent we can, and I think the piece of legislation does that.

[The Chair, Conservative, Gary Goodyear]

Thank you, Mr. Preston.

Mr. Guimond, you have the floor.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Thank you, Mr. Chairman.

Mr. Minister, we know that the objective of this Bill is to try and prevent in a way what the Liberals made us go through with the three elections before the last ones in January 23, 2006. In 1997, Jean Chrétien called general elections in June, 2 1/2 months after the election of Gilles Duceppe as leader of the Bloc québécois. In 2000, Mr. Chrétien used to the same stratagem in calling general elections in November, 5 months after the election of Stockwell Day as leader of the Official Opposition. In 2004, Paul Martin played the same game when he called the elections in June 2004, 3 months after the election of Steven Harper as leader of the Conservative Party.

The Liberals deliberately took advantage of the arrival of new leaders, perhaps because of divisions within their own party, to pull a fast one on us, if I may use that expression. With this Bill, you want to make the process more democratic. Polls tell us that 76% of Canadians and Quebecers agree with the principle of a fixed election date. Here is my first question.

If the Bill is passed, will the Prime Minister still have the power to recommend the dissolution of Parliament at any time before the prescribed date?

Let's take an example. Let's leave aside the fact that we now have a minority government and suppose that we have a Conservative majority government. If the Bill is passed, will Prime Minister Harper still be able to call general elections before October 19, 2009? It's an easy question and you can answer yes or no.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You certainly had a long preamble to that question, Monsieur Guimond. You made it very specific to the Liberal Party, but the confidence conventions and the prerogative of the Prime Minister to advise the Governor General for the dissolution of Parliament is open to all political parties that may happen to govern this country. I myself was a part of a government in the early nineties that went almost the full five years. Believe me, there were those who asked me years later why we didn't go after four years. I mean, why would you go after four if your electoral prospects are as dim as I believe the government's were in 1992? You hang on and hope that things will turn around. That's open to everyone.

So if Mr. Chrétien went at three, and Ms. Campbell went at five, that was the existing state of law. I think this is a fair way to do that. This is crafted in a way that the prerogatives of the Prime Minister to advise the Governor General, and the Governor General's prerogatives, are in no way diminished. That being said, it seems to me that a Prime Minister who has indicated a certain date to the public would be very hard pressed to unilaterally pull the plug for no other reason than that he or she felt there was an electoral advantage.

You probably are aware, Monsieur Guimond, that conventions are something that build over time. Having legislation like this--that again in no way constrains the Governor General--will begin a new convention about when and how Canadian elections will take place. But this is not in any way meant to fetter those prerogatives that exist in our current system.

Did you want to add something to that, Monsieur Guimond?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Let's leave the parties aside and suppose that all the party leaders are present. If I understand correctly, the Prime Minister would...

[The Chair, Conservative, Gary Goodyear]

I'm sorry, our time is up on that round. Perhaps there will be time in the second round.

We're doing really well here.

I'll move to, Mr. Dewar, please

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Mr. Chair, and thank you to our guests.

I will just state for the record that as a party we support this. In fact, it was part of the ethics package of my predecessor, Mr. Broadbent. We're still looking for a couple of other things, such as floor crossing, and in fact the whole idea of real democratic reform and proportional representation, but we'll save that for another day.

Let's turn to Bill C-16. There's a paper attached to my package from the Library of Parliament about the history of the private members' bills vis-à-vis fixed election dates. It provides some interesting ideas, and one of them in fact is from our very own Prime Minister. I guess this dilemma we have is whether we are going to deal with the C word--not wanting to open up the Constitution. I think most people would concur that it probably wouldn't be helpful to open up the Constitution to get this done. But I think if you take a look at Mr. Rowland's private member's bill in 1970, the concerns that have been presented before us are addressed.

I'm wanting this to go through, and I'm supporting the bill, but do we actually believe there is a point where we will deal with the constitutional reform? Does that need to be done in the future? If we do this, at some point could we take a look at that? Would it be possible? I'll leave that to you.

The second thing I would ask is how this affects the government's plans for Senate reform.

Third, please explain to us...because I don't think this should be called fixed election dates, they are flexible fixed election dates. Mr. Milner provided that language. I think it's important that we say that, because it confuses the electorate. They think, oh, no matter what, we'll have these fixed dates. That will undermine the idea of the minority Parliament.

My last point is that citizens should understand that you won't have a campaign for four years, that there will be some boundaries around when you're allowed to start campaigning. Perhaps you can give us some insight into that, because I think a lot of people are quite rightly concerned that we'll have campaigns going on forever--and no one, not even us, would like that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Dewar. You hit the nail right on the head. You said it wouldn't be helpful to open up the Constitution at this point or on this particular issue, and I would suggest to you that it's unnecessary to do so, inasmuch as we have legislation that doesn't overly complicate the question but is very doable.

You asked if this was in any way tied to our reform or to changes in the Senate. It's not. It's independent of that. It's an incremental change and an improvement in our particular system. And you're quite correct; the individual who wrote that article, Mr. Milner, said that what we have is a flexible fixed-date system. And this is what I indicated to you earlier. It's a little more complicated within the British parliamentary system to actually fix a date for an election. It's a little easier in.... Many examples were given to me: Latvia, Mexico, the United States. Those are slightly different systems that don't have a confidence convention built into them, as we have. So ours is flexible but fixed-date at the same time.

With respect to the campaigning, we'll have a front-row seat to see how it goes in the province of Ontario. They have an election scheduled for October of next year, and we'll see whether they spend the whole year campaigning. My guess is that they won't.

You have a situation now where if you think the election will be any time between three and five years away, you could indeed be campaigning all the time and worrying about that. But in terms of nailing down things like campaign offices, ordering signs, and all that, I think it can be done in a much more orderly way. Yes, there will continue to be rules that govern distribution, publicity, and fundraising. All those things will continue to be in effect. But overall, I think this is an improvement on the situation we have now.