Evidence of meeting #21 for Procedure and House Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was meeting.
A recording is available from Parliament.
11:55 a.m.
Conservative
The Chair Conservative Gary Goodyear
Thank you, Professor, and thank you, Madame Picard.
Mr. Dewar, please.
October 5th, 2006 / 11:55 a.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
Thank you, Chair, and thank you to our guests in B.C., Sweden, and right here in Ottawa.
Most of you agree that this is a good bill and that it is the right direction in which to go.
Mr. Milner, your writings and the presentations you made to the Law Commission of Canada--which we all value and sadly see the demise of, but that's another story—were on the issue of democratic reform, and flexible fixed election dates are a piece of the puzzle. As I've said in committee before, from my perspective and that of my party, this is not the panacea for democratic reform; it's a piece of the puzzle.
Now to the point and questions around your presentations, I'd like to start with you, Mr. Milner, because I share your concerns about clarity in the bill. I am not a constitutional lawyer; I'm a humble servant of the people, and I'm glad you're emphasizing that this is something for the people. It is not for us; it's not the inside baseball that usually occurs. It is to make it explicit to the people of Canada that this is when an election will take place, and if it is not to be on this date there should be some darn good reasons why.
You've had some time to reflect on what possible changes could be made. I'm not a constitutional lawyer, but I like the idea that we have some criteria in the bill that are overt and clear about the intent of this bill.
Do you have any thoughts around that?
11:55 a.m.
Visiting Professor, Department of Political Science, Umea University, As an Individual
Well, as I said--and I won't try to repeat myself--I assumed that this would be in the bill, and when it wasn't there, I found myself in a quandary, because it's not the sort of thing.... I'm not experienced at drawing up laws. Something that would say that elections in Canada take place under the following conditions unless a government loses the confidence of the House, at which time the Governor General, on advice, will call an election at another date struck me as a natural way to set up the law.
If there were major constitutional concerns, I would have liked them to be addressed in a different way than they were addressed here. I find that given the way the law is worded, with the first item being a negative one, certainly anyone reading this law would say that it doesn't really change anything. Before you actually announce in the law the new situation about election dates, the first item literally, physically, says that nothing will change the ability of the Governor General, on advice, to call an election at any time.
So pedagogically, at the very least, if it really is a major obstacle--and frankly, I haven't been convinced of it, and I'd like to be convinced of it--to doing what I've proposed, surely the law should be written in a way that makes it very clear that the intent is that this power of the Governor General be used as little as possible. If you can't specify the specific circumstances, at least specify the intention.
So that's where my real disappointment is.
Ultimately, if it is true that you cannot do this under our interpretation of the Constitution--which I don't see being the case--and it turns out that the constraints we are capable of imposing prove to be ineffective or are expected to be ineffective, then we can actually change the incentives, as I said, by moving the date, by not allowing the date of normal elections to be fixed. That would be perfectly constitutionally viable, and it would certainly change the incentive situation, even under minority governments, to make premature elections less likely.
I think that's what Canadians would want, but it is an extreme measure, and I'm not necessarily advocating it at this point. I think it's incumbent upon the politicians, the people behind this bill, to persuade me, if I'm representing Canadians in this case, that this bill will change normal ways of holding elections and calling elections. That's what I want to be persuaded of. That's what I think the people of Canada have the right to be persuaded of. The way it's drafted, and the discussion that I've seen, and the reasons that I've seen, frankly, have not done the job.
Noon
NDP
Paul Dewar NDP Ottawa Centre, ON
I just wanted to know if the other witnesses wanted to comment on that, if they had any insight on it. I'm with the professor. What we want to get away from are parlour tricks. We've seen too many of those, so I'm just wondering if you have any ideas on how to achieve those goals.
Noon
Associate Professor, Department of Political Science, University of Montreal, Visiting professor in Democracy and Elections, American University, As an Individual
You know, parliamentary institutions are complex things, and when you are talking about the parliamentary system, what I would say is that dissolution is pretty much, as they say in English, in the nature of the beast.
Now, some people have tried to create the impression that early elections were a monstrosity or something unheard of, that we were real troglodytes, clinging to our own practices on this. Wait a minute. Let me quote you one of the best contributions on this topic, an article that appeared in the American Political Science Review in 2002. It agrees, by the way, that the use of dissolution is often opportunistic, but what does it have to say about fixed date elections? It says: Contemporary parliamentary constitutions vary widely in their dissolution powers. There are some systems in which discretionary dissolution is constitutionally proscribed
-- through fixed date elections--
in Switzerland, which we admittedly would not classify as a parliamentary democracy, Parliament can be dissolved only upon constitutional amendment. And while the Norwegian constitution in practice is clearly parliamentary, it permits no early dissolution of...(the Norwegian Parliament) for any reason. Yet such cases are rare. Most constitutions permit parliamentary dissolution and place the ultimate decision in the hands of the head of state...
The point to be understood here is that dissolution is part and parcel of the parliamentary system. I won't venture to explain to you the historical circumstances that led the Norwegians not to have dissolution, but I can tell you they are clearly peculiar and it had to do with their status as an associate of Sweden earlier.
Noon
Conservative
The Chair Conservative Gary Goodyear
I'm sorry, the time is up for that round. Perhaps, Mr. Dewar, you might want to finish that question in the next round.
We're going to move to the second round now, with five-minute rounds--that is, five minutes for questions and answers. We will start with Ms. Jennings, please.
Noon
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you very much for your presentation.
First, I just wish to make the point, and I assume the witnesses agree, that to label Bill C-16 as establishing fixed election dates is not accurate. A more accurate description would be that they are flexible fixed election dates. That's my first point.
Second, we've had a number of witnesses come before us and attempt to make the argument that moving to either fixed election dates or flexible fixed election dates would actually improve voter participation. I have asked these witnesses to bring forth studies they have that would demonstrate a clear causal link or correlation between higher voter participation and either fixed election dates, when the voter is completely free to vote or not, or flexible fixed dates. I've yet to see them, so I'm wondering if any of you witnesses would have that information.
Finally, I would like to address the point that you raised, Professor Massicotte, when you said that you expected, from a pedagogical standpoint, that the Constitution Act, 1867, rather than the Canada Elections Act, would be amended.
12:05 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I am also wondering why it was done this way. I know one could argue that to amend the Constitution Act, 1867, the approval of seven provinces is required, and so on. But there is another argument that says the Parliament of Canada can unilaterally amend the section stating that an election must be held every five years, or at the very latest in the fifth year.
I would like you to comment on that, because I'm rather confused about the reason why the Canada Elections Act is being amended, rather than the appropriate section of the Constitution Act, 1867.
12:05 p.m.
Conservative
The Chair Conservative Gary Goodyear
Madam Jennings, are you referring specifically to Professor Massicotte or to everybody?
12:05 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I am referring to Professor Massicotte on the issue of modifying the act of 1867 and the other witnesses on the first two points I raised. If Professor Massicotte also wishes to comment on the first two points, he may.
12:05 p.m.
Associate Professor, Department of Political Science, University of Montreal, Visiting professor in Democracy and Elections, American University, As an Individual
Thank you, Ms. Jennings.
I am a political scientist, but I am neither a constitutional expert nor a lawyer. However, I myself have studied this carefully. I worked on Parliament Hill for seven years. I was there when the Constitution Act, 1982 was passed. As regards the formula for amending the Constitution, I have in fact studied it quite a lot, and this is what I have concluded.
When you ask what the federal Parliament can amend in the Constitution through a simple Act of Parliament, I believe you are referring to Section 44, which stipulates that the Parliament of Canada may amend any and all provisions of the Constitution of Canada related to the executive and the legislative branch. It is a very broad power.
Section 42, which stipulates that the approval of seven provinces is required to do certain things, is a provision that limits a general power. That limitation should itself be interpreted in restrictive terms.
In the specific list of subjects listed under Section 42, which requires the consent of seven provinces representing 50 per cent of the total population of the provinces, I see no mention of the term of Parliament's mandate. I'm sorry, but that simply is not there. Consequently, I believe the term of the House of Commons mandate very clearly falls under the federal Parliament's legislative authority.
Some will say this interferes with the powers of the Governor General, but I think we have to be careful here; what requires the unanimous consent of the provinces has nothing whatsoever to do with Her Excellency because, as you know, the entire Government of Canada is lead on behalf of Her Excellency. It is the function per se that is at issue, and not each of the royal powers. Indeed, if you wanted to change that function, you would need everyone, even though in my humble opinion, that could have been included in the Constitution Act, 1867.
12:05 p.m.
Conservative
The Chair Conservative Gary Goodyear
Thank you.
Thank you, Madam Jennings. I'm sorry, your five minutes are up. Perhaps on the next round you can get one question in.
12:05 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
May I simply ask that if the witnesses have any evidence or studies, could they submit them in writing?
12:05 p.m.
Conservative
The Chair Conservative Gary Goodyear
Are the witnesses clear on that? If you have any studies that have any correlation or suggest that the voter turnout is better with this type of format suggested by--
12:05 p.m.
Visiting Professor, Department of Political Science, Umea University, As an Individual
Can I answer that?
12:05 p.m.
Conservative
The Chair Conservative Gary Goodyear
Actually we don't have time for an answer, but maybe Madam Jennings might be able to get the answer in the next round.
We do have to move on, because there are other questions.
Mr. Reid, please.
12:05 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I propose the way we get the answer to Ms. Jennings' question is for me to ask Professor Milner to comment on this. If I'm not mistaken, in the paper Professor Milner wrote, which I think was submitted to all of us, he did a fairly exhaustive study. I'm assuming that the way to answer this question would be to look at jurisdictions that have gone from non-fixed to more fixed elections and then to examine them.
I don't know if that's the case, but Professor Milner, I'd be interested in knowing if you have anything to say on that.
12:10 p.m.
Visiting Professor, Department of Political Science, Umea University, As an Individual
There is no evidence of the kind you ask, mainly because we have very few examples of recent changes of the kind you describe. Since most countries use fixed elections, to isolate fixed versus unfixed and look at the different voting turnouts would not work statistically.
There are two points I'd like to make on this. I have argued that with fixed election dates--and Mr. Dewar mentioned this--as part of a series of changes to address the democratic deficit, then I think it would be very clear because we would end up being similar to countries with higher turnouts, like the country I'm in right now. But that would not just be fixed election dates; it would include, for example, more proportional elections. If you combine those and a number of other specific matters, it's pretty clear that you would more likely improve turnout.
The second point--and this is the point I make in the article that you cite--is that what having fixed election dates does is make it easier to address particular groups that we have found are likely to be absent from voting. It makes it easier to address them and say, look, let's develop a strategy so that in the next election we can mobilize resources towards those people. If these are young people, for example, the resources to be mobilized would largely be through the schools, through planning civic education courses. If it's immigrant-based populations, it might be other means. If it's attracting women candidates, for example, I think fixed election dates would help in that regard, for the reasons I've explained and that have been mentioned in this committee.
In the very specific measures to improve participation, having fixed election dates is a good tool to facilitate that, but those are very specific, in that it's in the context of those kinds of very specific measures that fixed election dates would affect turnout. I'm not prepared to simply say that if this law is passed more Canadians will vote. There's no data to allow us to predict that.
Thank you.
12:10 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
At one point in a previous meeting--and Madam Jennings can correct me if I'm wrong--I believe I overheard her expressing a concern that the number of voters might actually go down in the event of fixed election dates.
12:10 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I believe I overheard you say it to the chair at one point, or to the clerk.
12:10 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
I'll ask Professor Milner. There is no evidence to suggest that there could be a reduction in participation, is there?