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)
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.
