Procedure and House Affairs Committee on Feb. 28th, 2008

[A voice]

I'm proud of my ties.

[The Chair, Conservative, Gary Goodyear]

Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Before I was interrupted by the very well-dressed member from Hull--Aylmer, I was about to say that the report of the Chief Electoral Officer on the 1997 election--the 36th general election--gave the same interpretation, in the context of the fact that in the 1997 election, national parties weren't allowed to conduct advertising on June 1, which is the day before polling day, and June 2, the day of polling, under section 48 of the act. On the other hand, other candidates were allowed to do so when a similar restriction on them, contained in a different section of the act, had been struck down by the courts. These are all blackout provisions that don't apply any longer, but the interpretation of the relevant section of the act continues on and is consistent.

Here's how the Chief Electoral Officer expresses this. He says:

The criteria applied to determine whether specific advertisements were to be accepted for broadcast were the identity of the sponsor and that of the body or person invoiced. The content of the advertisements accepted was subject only to the freedom of expression guaranteed by the Charter. As a result, a number of individual candidates purchased time on the day before polling and on the actual day of the election. Since the time purchased was often used to run a national advertisement with a local tag line, this rendered the prohibition in section 48 somewhat ineffectual.

This wasn't just put out in the report to Parliament; it was also put out in a press release as well as in a notice to the media. These were issued by Elections Canada on May 24 and May 29, 1997, respectively.

So, once again, Elections Canada was asserting at that time, very clearly, that it was their position that there is no restriction on the content of advertising by candidates ever. Indeed, we believe that there can't be, because the charter allows it.

The man who was then Chief Electoral Officer, Mr. Kingsley, explicitly recognized that the act allowed candidates to pay for national advertising. It actually spelled it out, that the time purchased was often used to run a national advertisement with a local tag line. He had no problem with that. Money was rebated, as long as the appropriate tag line was included, and no one disputes the appropriate tag lines, authorized by the official agent for so and so, was included. That's not in dispute.

So we now turn to the year 2000. Once again we see a consistent interpretation in the Elections Canada Election Handbook for Candidates, their official agents and auditors, the 2000 edition, which provides the following, in section 4.4.5, under the heading of “Election advertising”:

Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.

Section 4.4.5.1, “Identification of election advertising”, reads as follows:

All election advertising that promotes or opposes a registered political party or the election of a candidate, including taking a position on an issue with which a registered party or candidate is associated, must indicate that it is authorized by the official agent of the candidate.

So once again, in case anybody was thinking, “Oh, that injunction, you've got do this because it dates back to 1988, and back then you had to register these things, and the rules have changed...”--although it was still that way in the year 2000.

Let's move a little closer to the present and consider the December 2005 Election Handbook for Candidates, their official agents and auditors. Now we are into the realm of the 2006 election, because this is the one that would have been used in the 2006 election. This is the one that would have been followed by all those official agents who the Liberal MPs over there are claiming were in violation of the law for claiming illegitimate expenses and were putting their.... The imagination trembles; they were putting their tag line--their tag line--on ads that were used elsewhere and that were promoting their candidate. Children are going to wake up screaming at night when they hear about this.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Mr. Chair, I have a point of order. I think they should address the chair rather than talk to each other, especially on a speech.

[The Chair, Conservative, Gary Goodyear]

Thank you. I agree. That's a good point of order, and I will ask the member to speak through the chair.

Go ahead, Mr. Reid.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I think in all fairness, on the same point of order, Mr. Chairman, I want to make it clear. This is important because of the record that of course will be widely read, and I was speaking through you. I did have my head turned in another direction at that point, but as you know, there's quite a bit of background chatter in the room. I have a quiet voice, and some people might not have heard me. So I was speaking through you in terms of whom I was addressing, to the other members of the committee, but I was doing so in a manner that caused me to turn my head momentarily in the direction...and certainly that was all that was intended.

I understand that point of order was made with the very best of intentions by Mr. Godin, but then, as now, I was talking through you, even though I was facing him and the other colleagues. I want you and all of us to understand that, but I say these remarks entirely through you, Mr. Chairman. That concludes my part of the point of order.

The Election Handbook for Candidates, their official agents and auditors from December 2005 makes the following provision, under the heading “election advertising”:

"election advertising" means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.

It's the same language. Quelle surprise: “an advertising message that promotes or opposes a registered party or the election of a candidate”. We're working up to those famous tag lines, and guess what it says? I quote again: all election advertising that “promotes or opposes a registered party or the election of a candidate” including a position on an issue with which a registered party or a candidate is associated--drum roll, please--must “indicate that it is authorized by the official agent of the candidate”.

Just to be clear, the drum roll was not part of the quote; I did that.

The above text is from 2005. It's unchanged from 2000, and it is the wording that would have applied to the election conducted between December 2005 and January 2006, including election day, January 23, 2006. There you are.

When Elections Canada says we must interpret the law in conformity with our interpretation bulletins, I assume it means the interpretation bulletins we used over an 18-year span of time without any changes. There was no other literature out there that said anything different. At any point, they were as consistent as could be. And there is no violation of the law as it was written. There is no violation of the law as interpreted by Elections Canada. There is no violation of anything. Indeed, what we see is zealous compliance with the law over and over again.

Once I get into the affidavits that deal with the similar practices of the Liberals, I notice that zealous compliance is not an appropriate characterization of what went on there. We had shoddy reporting in one case after another, so sometimes it's simply impossible to tell how money was spent, whether transfers in and out of ridings were intended for the purpose of promoting the candidate, the national campaign, etc. If this is true in 2006, it is equally true in 2004 for the Liberal Party, and also, I should mention, for the Bloc and the New Democrats, but especially the Liberals, where I think the word “sloppy” is simply the best available word to describe the reporting practices of far too many campaigns.

All right. So that's the situation.

Guess what? There is a sudden change in the Election Handbook for Candidates, their official agents and auditors as published by Elections Canada in—guess when—March 2007. This one is different. This one is consistent with their current interpretation. It says the following, and I quote, under the heading “Election advertising”:

Election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a candidate, including one that takes a position on an issue with which a registered party or candidate is associated.

So it doesn't say a candidate or party any more, right? The words, “a registered party or the election of a candidate”, were there before. I don't know why they were left out. I can speculate that it was done for nefarious reasons, or I can speculate that it was done as a result of a typographical error. No. What I do know is that it was not what was in force in 2006 during the election.

Okay. The identification of election advertising is the next heading they've got. I'm now quoting again from the March 2007 Election Handbook for Candidates, their official agents and auditors, published by Elections Canada.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I have a point of order.

[The Chair, Conservative, Gary Goodyear]

Really?

A point of order, Monsieur Godin.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Mr. Chair, could we have your intention as to whether or not we will continue until the vote tonight? We can see this is filibustering, and according to the rules we should continue.

[The Chair, Conservative, Gary Goodyear]

Let's see what happens.

Mr. Reid, please.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you.

With regard to identification of election advertising, all election advertising that....

I'm sorry, I was just interrupted there, and I know that Monsieur Godin will want me to be clear on this.

I'm quoting again from the March 2007 version of the Handbook for Candidates, their official agents and auditors:

All election advertising that promotes or opposes a candidate, including taking a position on an issue with which a registered party or candidate is associated, must indicate who authorized it (e.g. if promoting or opposing a candidate in his or her own electoral district, it must be authorized by the official agent of the candidate).

There again, “party” has changed, although, oddly enough, “an issue with which a registered party or candidate is associated” is permitted.

So I guess this interpretation says something like...and I do have to guess here. It's no longer a straightforward interpretation. It's now somewhat baroque, or maybe even rococo.

[An hon. member]

Rococo?

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Rococo is like baroque, only more baroque than baroque....

Count Chocula? Oh, the McGuintys always provide interesting interventions.

I think what we have here is that they're now saying that if I promote a candidate....and let's continue to take my riding as an example. If we are promoting Scott Reid--“Vote for Scott Reid, he's a stand-up guy”--that's okay. But this talks about “taking a position on an issue with which a registered party or candidate is associated”.

By way of example, I'm associated with the widespread dissemination of defibrillators to local hockey rinks. We put them into the trunks of police cars in two of our independent police forces. I've had a fair bit to do with that, and I'm quite proud of it. I have multiple constituency offices, three of them throughout the riding.

If I promote that stuff, that's okay. If we promote the side I'm on with regard to an issue like the long gun registry--which, I assure you, everybody in the riding knows I oppose--that's cool.

But it mentions here “a position on an issue with which a registered party or candidate is associated”. So if we promote the position taken by my party on the GST, which we've cut from 7% to 5%, or if we draw attention to the fact that the Liberal Party of Canada wants to raise the GST back up to 7%, then that's okay, I assume.

However, if I promote the party itself, that's a no-no. I guess I have to mention the GST in a party-free environment. It's okay to say, “There's another group out there, we can't say who they are, led by a guy, we can't say who he is, and they want to raise the GST back up.” But if I say, “It's Stéphane Dion and the Liberals”...? Oh, can't do that.

I have to assume that this is what the interpretation means. It's a nonsensical interpretation, and I would hazard a guess that it's also an unconstitutional interpretation, quite frankly. It's certainly nonsensical.

Even if it weren't nonsensical, it's still an after-the-fact interpretation. It doesn't apply to the 2006 election. It wasn't in force then.

This is the original wording going back to 1988:

Compliance with these guidelines will ensure no prosecution will be initiated by the Commissioner on matters related to the guidelines.

I guess this is saying, “We didn't really mean that. What we meant is no prosecution unless we feel like it, unless we start feeling like it tomorrow, or ten or twenty years from now.”

I actually don't know--I'm not a lawyer--to what degree words like this would be found to be binding.

They're issued by someone who presumably has administrative control over his agency. The Chief Electoral Officer has a legitimate and realistic expectation that he will comply in his administration of the law with what he says he'll do.

It may be the case that these words actually are binding on the Chief Electoral Officer, in which case the whole thing is over right now, on that basis. I'm not sure that's actually a legal case that can be made. That's something I assume is going to be argued in court.

Certainly, if we're talking about the equal application of the law and the impartial application of the law, changing your interpretation after the fact has clearly been established. To say that this is a bad administrative practice is the least of the things we could say.

The deletion of the references to promotion of the party are, frankly, the main changes. As I say, it's almost as though a typographical error occurred. To make that point, you can repeat the entire text over again putting the words “registered party” in, and you'll see it's as though it's been popped out. You could read it this way: “election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes”—

[The Chair, Conservative, Gary Goodyear]

Colleagues, the reason for the Standing Order 106(4) meeting and the timing for that meeting have now expired.

This meeting is adjourned.