Procedure and House Affairs Committee on Dec. 1st, 2009

[The Chair, Conservative, Joe Preston]

Order.

We're back looking at the Referendum Act under Standing Order 108(2).

I want to quickly finish a matter we were dealing with in camera. The steering committee is having some trouble determining when they can meet, because Monsieur Guimond is out of town. I suggest we ask the clerk to send letters to the two people we were talking about, asking if they are able to attend either Tuesday or Thursday of next week. Some time in that period we'll also endeavour to have a steering committee meeting so we can clear up the other issues.

If I have the will of the committee, we'll simply do those first two items without having a steering committee meeting, and then we'll do it.

[Some hon. members]

Agreed.

[The Chair, Conservative, Joe Preston]

We have three witnesses today, all chief electoral officers.

I will let you one at a time—and you'll have to draw straws among yourselves—give a brief opening statement to the committee, and then we'll ask you questions.

Please begin at your leisure. We have until one o'clock.

Thank you.

[Lowell Croken, Chief Electoral Officer and Chief of Protocol, Legislative Assembly, Elections P.E.I.]

Thank you for inviting me to present.

I'm honoured to be here representing Canada's smallest province, Prince Edward Island. Our province has plebiscite legislation, but we do not have referendum legislation.

l'm going to share with you a little bit of information about our province. Federally, we have four members of Parliament; provincially, we have 27 members in the Legislative Assembly; municipally, we have 74 mayors and chairpersons and more than 325 municipal councillors. In schools, we have three school boards electing a total of 29 trustees.

Elections P.E.I., the office I work with, oversees and manages provincial, municipal, and school trustee elections. Provincially, we have four registered political parties: the Liberal Party, the PC Party, the New Democratic Party, and the Green Party.

In 2007 Prince Edward Island had 97,810 electors on the provincial register of electors. The voter turnout in the last provincial election, which was in May 2007, was 83.8% The average voter turnout for the past 13 provincial general elections, from 1966 to 2007, averaged a little under 84%. Prince Edward Island's population is estimated at 140,400 persons.

The province has a Plebiscite Act, with supporting legislation. The regulations are approved by the Lieutenant Governor in Council, and for each plebiscite, the regulations are tailor-made for the plebiscite in question. The regulations then take on the name of the plebiscite that is in question, and they are only in force during that particular plebiscite event. This policy permits the province to better react to the ever-changing circumstances of plebiscites.

From 1878 to 1901 there were several plebiscites held, all with respect to prohibition. Back in 1913 there was a plebiscite held at the local school district meetings, in which it was estimated that 90% of the rural folks voting rejected the opening of the provincial highways to automobiles.

Over the next 75 years, smaller plebiscites followed on a variety of topics, most isolated to certain parts or groups of the province. For example, in 1954 a plebiscite was held asking potato producers the following question: "Are you in favour of retaining the P.E.I. Potato Marketing Board?" Sixty-six percent voted yes. Now, some 55 years later, the P.E.I. Potato Marketing Board still represents Island potato producers.

In the last 100 years there have been really only two major plebiscites island-wide: in 1988 on the fixed link crossing, and then in 2005 on the mixed member proportional representation system. The first plebiscite, the fixed link crossing plebiscite, was held on January 18, and the vote was held all across the province. The fixed link question was as follows: “Are you in favour of a fixed link crossing between Prince Edward Island and New Brunswick?”

In order to pass, the question required a yes vote of 50% plus one. The fixed link plebiscite was run similarly to a provincial election. The voters list was used from the previous election, and the voter registration period was extended to cover ten days, thus allowing more electors to be added to the list of electors. There were 364 polling locations, staffed by election officials. There were 86,000 eligible electors. Almost 56,000 voted, for a voter turnout of 65%, and 40.3% voted no, while 59.5% voted yes. There was no public financial support for either the no or the yes campaign.

As a point of interest, the accepted practice for PEI plebiscites pertaining to the order of listing of the no or yes answer on the ballot is that we always list the no and yes in alphabetical order, similar to the listing of candidates' names on ballots.

The government chose the date of January 18 for polling day so that families and friends could discuss, debate, and be informed about the fixed link issue over the Christmas holidays.

The second major plebiscite was held in 2005. Here's some background information.

In 2002, at the request of the Legislative Assembly, Elections P.E.I. prepared a report detailing electoral systems from around the world and listed advantages and disadvantages of the “first past the post” system.

In 2003 the electoral reform commission, chaired by retired Chief Justice Norman Carruthers, recommended that the “first past the post” system be modified to provide for a mixed member proportional voting system.

In February 2005 the Commission on P.E.I.'s Electoral Future was established under the chairmanship of Mr. Leonard Russell. The commission held several public meetings and prepared and distributed information to the public, including via a website. The report compared the first past the post system, our current system, and the commission's proposed mixed member proportional system.

The commission recommended that a provincial plebiscite be held on October 28, 2005. The Lieutenant Governor in Council approved the following question: “Should Prince Edward Island change to the mixed member proportional system as presented by the Commission on P.E.I.’s Electoral Future?”

The plebiscite requirements were similar to the requirements used for the 2005 referendum held earlier in British Columbia. The Lieutenant Governor in Council approved the following definition of “majority”, with the following two requirements. One, a yes vote by at least 60% of the voters province wide was required to approve the proposal. The results were that 63.6% voted no and 36.4% voted yes. Second, a yes vote of at least 50% in at least 60% of the provinces's 27 electoral districts—that is, in 16 districts—would be required to approve the proposal. Only two electoral districts received a yes vote of 50% plus one. The remaining 25 electoral districts did not reach the 50% requirement.

The voter turnout for the plebiscite was as follows: with 97,000 eligible electors, 32,000 voted, for a voter turnout of only 33%. As was the case in the earlier 1988 plebiscite, there was no public financial support for either of the no and yes campaigns; consequently, there were no requirements for the filing of financial reports or the issuing of donations or income tax receipts.

This plebiscite in 2005 was run a little differently from the 1988 fixed link plebiscite. The province, deciding to be financially responsible, chose: one, to provide for fewer voting locations; two, not to prepare a list of electors. Three, electors were asked to answer qualification questions and then sign the poll book. Four, two days for advance polls were held, with one poll in each of the 27 electoral districts. Five, on voting day, two or three voting locations were established in each of the 27 electoral districts, amounting to 61 voting locations province-wide as compared to the 296 province-wide voting locations used in the 1988 fixed link vote. The mixed member proportional representation plebiscite vote was not successful. The plebiscite on proportional representation cost $241,000 to administer.

In summary, the consequence of the fixed link yes vote in 1988 was that the Confederation Bridge was constructed. The curved 12.9-kilometre bridge is the longest in the world crossing ice-covered water. It officially opened in the spring of 1997, at a total construction cost of one billion dollars. The bridge joins the rest of Canada to Prince Edward Island.

The consequence of the mixed member proportional system no vote in 2005 is that the province remains under the “first past the post” electoral system, and to date the province has not mandated any commissions or committees to further review or discuss changing our electoral system.

I would recommend that provincial plebiscites be held during a provincial election, for administration purposes but also to bring more awareness to the plebiscite question, as well as financial savings.

I appreciate this opportunity to share with you Prince Edward Island's experience with plebiscites, and I will later answer your questions.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Next...

[Marcel Blanchet, Chief Electoral Officer, Élections Québec]

Thank you.

Ladies and gentlemen, it is a pleasure to appear before this committee to tell you about the Quebec experience with referendums. Before beginning, I would like to remind you that the Chief Electoral Officer of Quebec is responsible for the holding of elections and referendums in Quebec and also supervises and offers advice to municipal and school electoral officers. To assist the committee in its work, my presentation will deal mainly with the legislative framework for referendums organized by the Chief Electoral Officer of Quebec. Since 1980, we have been directly responsible for the holding of three referendums. The Referendum Act, which received Royal Assent in 1978, governed those three electoral events.

In my presentation, I will attempt to give a brief explanation of the unique characteristics of the Quebec system. I will talk first about the legislative framework. In Quebec, referendums are governed by the Referendum Act. That act provides for the adoption of the provisions of the Election Act then in force. Those provisions are listed in Appendix 2. So there is a Referendum Act, which contains an Appendix 2, and that appendix includes the measures in the Election Act that must be adapted. It is a little complicated.

In Appendix 2, we have what is quite simply the recipe for converting the provisions of the Election Act into provisions for referendums. The Chief Electoral Officer then publishes a special version of the act so that a referendum can be held. So the Chief Electoral Officer does not make regulations specific to the referendum. However, it must be noted that this calls for constant updating of Appendix 2, each time the Election Act is amended. This has been done regularly, except for the last two times, in 2006 and 2008. At the time, a complete revision of the Election Act was being considered in Parliament. We said that in the circumstances, we would wait for the revision to update the appendices to the Referendum Act, but it hasn't been done yet. However, it is up to date as of 2006.

At the municipal level, referendums are governed by the Act respecting elections and referendums in municipalities. In that case, the provisions governing referendums and elections are included in a single act. We can come back to this particular legislative framework, if you would like, during the question period.

I am now going to address the question of financing. The Referendum Act, like the Election Act, provides for stringent controls on financing and oversight of spending. For referendums, the term election expenses is replaced by regulated expenses. The principle of equity among the political actors that is found in the Election Act is adapted to the referendum context. In this case, the act provides that only two national committees, also called umbrella committees, may incur regulated expenses. Those expenses are limited to $1 per elector. So if there are 5.5 million electors, each committee may spend $5.5 million.

On the question of sources of financing, the national committees may use four types of sources. First, there is the government subsidy, which the National Assembly may fix. In the 1995 referendum, that subsidy was fixed at $0.50 per elector. There is also the transfer or loan of money from political parties, which may not exceed $.50 per elector, that is, an additional $2.5 million, in terms of the 1995 referendum. Third, contributions by electors, which may not exceed $3,000 per elector, to each national committee. A fourth source of financing could be loans. The legislature has also provided for that, but it has never been used. A loan must be repaid within 90 days after the poll, that is, at the time the regulated expenses report is submitted.

However, even though there are stringent rules governing financing and control of electoral spending in a referendum in Quebec, it must unfortunately be said that some of the actors may try to circumvent the rules. A report has been written about our experience, dealing with the activities of certain actors. In the report, commissioner of inquiry Bernard Grenier found that there was illegal spending in the 1995 referendum. Mr. Grenier also recommended a number of remedial measures.

In addition to the national committees, the Referendum Act provides that a non-affiliated elector or a neutral intervenor may incur advertising expenses of up to $1,000. Those provisions represent the action taken by the legislature in response to the decision of the Supreme Court in Libman. Those rules, which are set out in the Referendum Act, are modeled on the rules in the Election Act, in terms of both control of expenses and sources of financing, with the exception of the limit imposed on spending. For an election, individuals may spend a maximum of $300, while in a referendum it is $1,000.

I would like to say a few words on holding a referendum and an election simultaneously. Quebec's Referendum Act makes it impossible for a referendum to be held at the same time as a general election. When a writ instituting the holding of a general election be held is issued, any writ instituting a referendum ceases to have effect.

However, a municipal referendum could be held at the same time as a municipal election in Quebec. This has not happened, but the act as it currently stands allows it. It appears that the nature of the referendum and the question asked may have a major influence on the decision as to whether to hold the two events at the same time.

Another peculiarity of Quebec's referendum rules is the obligation of the Chief Electoral Officer of Quebec to send electors, not later than 10 days before the holding of a poll, a booklet explaining each of the options. The text is established by each national committee. Each option is given equal space in the booklet, as fixed by the Chief Electoral Officer.

I would also like to explain some peculiarities of Quebec's referendum timetable. The referendum period is fixed at 33 days and may be as long as 39 days, depending on the day of the week when the writ is issued. However, the writ instituting the referendum may not be issued before the 18th day following the day on which the National Assembly was informed of the referendum question. One thing that provision allows us to do is produce all of the electoral materials required for the referendum on time, including the ballots for voting outside Quebec, without extending the referendum period.

I hope that this brief overview of the Referendum Act will help you in your discussions of the federal Referendum Act. As I said earlier, our referendum rules are in fact a transposition of the provisions that apply in a general election. As the person who administers elections, I believe it is desirable for the rules in place during a referendum to be as close as possible a reflection of the rules governing general elections, in particular to avoid confusion among the electors and the various political actors on the scene.

Thank you for your attention.

[The Chair, Conservative, Joe Preston]

Merci.

Mr. Essensa.

[Greg Essensa, Chief Electoral Officer, Elections Ontario]

Good afternoon, and thank you, Mr. Preston, members of the committee, for inviting me to speak before you today on the topic of referendum legislation in Ontario and on our recent experience at Elections Ontario with a referendum in 2007.

I do want to note to begin, though, that I was appointed to the position of Chief Electoral Officer of Ontario in June 2008, and therefore I was not the Chief Electoral Officer at the time of the referendum and the general election in 2007. I understand that my predecessor as the CEO of Ontario, Mr. John Hollins, appeared before this committee last week to address the same topic. As he focused more on the operational experiences of the referendum, I will focus my attention on the legislative framework surrounding referendums in Ontario. I will spend some time discussing the legislative framework and then be happy to answer any questions you might have on the 2007 referendum or the related legislation.

The referendum we had in 2007 was the first referendum in Ontario in over 80 years. In terms of legislation guiding referendums in Ontario, we do not have a general referendum statute. The Taxpayer Protection Act of 1999 does have referendum provisions, but there has never been a referendum in Ontario under this legislation. I know that the Referendum Act governs referenda at the federal level, and that the Chief Electoral Officer of Canada is responsible for adapting the provisions of the Canada Elections Act to a referendum if one takes place. There is no similar referendum act at the provincial level, so in order for the referendum in 2007 to occur, specific legislation had to be passed to allow for it.

That specific referendum legislation for Ontario and the referendum itself that followed came about as a result of the Citizens’ Assembly on Electoral Reform, which was mandated in 2006 to assess Ontario's electoral system, to consider alternatives, and make recommendations on it. The citizens' assembly made its final report in May 2007 and recommended that an alternative electoral system be established in Ontario. In 2006 the Electoral System Referendum Act had to be introduced. It provided that if the citizens' assembly recommended changes to the electoral system, a referendum on their recommendations would be held in conjunction with the 2007 general election. That legislation also included provisions for some key aspects of the referendum should it occur. These provisions included that the referendum question was to be defined by cabinet; the electoral system recommended by the citizens' assembly would have to receive at least 60% of the vote overall and more than 50% of the vote in at least 64 electoral districts to be considered binding; the Election Act would apply to the referendum with necessary modifications; and finally, the Chief Electoral Officer would oversee the financial affairs of referendum campaign organizers under a regulation made by cabinet.

Because the citizens' assembly recommended in favour of a new electoral system, the provisions of the Electoral System Referendum Act did apply and a referendum occurred in Ontario in 2007 at the same time as the general election. The question for the referendum as established by cabinet was: “Which electoral system should Ontario use to elect members to the provincial legislature?” The first answer: “The existing electoral system (first-past-the-post)”, or “The alternative electoral system proposed by the Citizens' Assembly (mixed member proportional)“.

Another key aspect of the legislative framework for the 2007 referendum was the public education component. The Election Act was amended to make the Chief Electoral Officer responsible for conducting a public education program to ensure that electors received clear and impartial information about the referendum process, the date of the referendum, the referendum question, and the content of the choices of the referendum. As a result of this mandate for public education, Elections Ontario administered an extensive campaign to communicate referendum information to electors across the province. Mediums that were used as part of this communication effort included broadcast, print, online, posters, direct mail, and a public call centre. There were also outreach initiatives targeted towards young electors, and referendum resource officers who delivered information on the referendum in each and every electoral district.

Elections Ontario conducted surveys to determine the level of awareness of the referendum in advance of their electoral event and afterwards as a means of assessing the needs of the public education program and its ultimate success. In June 2007 only 8% of electors identified themselves as aware of, or very or somewhat knowledgeable about, the referendum. After the referendum, surveys indicated that 83% of electors were aware of the referendum, and 76% of electors felt they were either very or somewhat knowledgeable about the referendum. Elections Ontario had set a goal of ensuring that 75% of electors would know about this and have an understanding of the referendum and its contents. Based on these results, Elections Ontario felt it met its goal.

Though ultimately quite successful, the public education component of the legislation did create some operational challenges for Elections Ontario. One key challenge was the time and demands it placed on the Chief Electoral Officer and deputy chief electoral officer.

The CEO and deputy CEO conducted more than 120 interviews about the referendum. While providing this type of public information was extremely important and valuable, it also required a significant time investment on the part of these two senior individuals, who also had extensive responsibilities related to the administration of the election at the same time.

Another significant challenge for Elections Ontario that was related to the public education component of the legislation was the issue of neutrality. Elections Ontario was charged with providing information on the referendum in a completely neutral manner, and Elections Ontario is, of course, an impartial organization. However, there were external pressures to promote one side over the other during the referendum. Elections Ontario presented information in a neutral and impartial manner in accordance with the legislation, but in doing so did receive some criticism from those who wanted us to in fact take sides.

More broadly speaking, administering a referendum at the same time as a general election created some operational challenges as well, because it meant preparing for an extremely large and demanding project in a very short timeframe. This created some capacity challenges for Elections Ontario, and the organization had to work extremely hard to overcome them and deliver the two events simultaneously and successfully.

By way of conclusion, I want to note that the legislative framework that allowed for the referendum in 2007 does have a sunset provision. Some aspects of the referendum legislation were repealed fairly soon after the 2007 event, and the remaining provisions of the Electoral System Referendum Act, 2007 are scheduled to be repealed on October 10, 2013.

I hope this brief presentation has provided you with an overview of the legislative framework that allowed for the 2007 referendum in Ontario as well as some insight into some of the operational impacts and challenges that the legislation had on Elections Ontario.

I'm happy to address any questions that the committee members might have on this presentation.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much for all your presentation.

We'll now go to questions and comments. We're going to do only five minutes, because we have so much to do and three witnesses.

Mr. Proulx, you are first.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chair.

Thank you, gentlemen, for accepting our invitation.

Mr. Blanchet, with respect to the federal act, we are wondering whether a referendum should be held at the same time as a general election, or it is preferable to hold a referendum and an election independently. In Quebec, in my experience, and I am younger than some around the table, it has always been done separately, it was either a referendum or an election.

How do you see it working if both were held at the same time? Is that unacceptable, in your opinion?

[Marcel Blanchet]

It depends on the subjects. For some subjects it seems to me that there should not be a referendum at the same time as an election. Others, which I might describe as lighter, could be the subject of a referendum question on the occasion of an election. It depends on the subjects, but there is also the problem of financing. In Quebec, there are strict rules governing financing, both in an election and in a referendum. If it was decided to hold an election at the same time as a referendum, which the act does not ordinarily allow, then the legislation would first have to be amended to allow it. It would be necessary to harmonize the financing rules to avoid people who support a candidate in an election also supporting one or the other option in the referendum. It would be a bit complicated to untangle, but I think it could be done. However, it is not something I would recommend, given that ordinarily, I imagine, you would want to give a referendum question the full attention it deserves, if the public were to be consulted on a particular question. I understand that this would produce economies of scale, but in my opinion, if the question is worth putting to the public, I would prefer that there be a referendum separate from an election.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

In his presentation, Mr. Croken suggested that for economic reasons it would probably be acceptable to do the two together, except that the same problems might not arise in a similar context in Prince Edward Island, with 97,000 electors.

When Mr. Essensa's predecessor testified the other day, he talked about the referendum that was held in Ontario. And you touched on that point indirectly. He explained that it was much more an administrative sort of referendum. It was a question about the election method that should be used. So the politicians did not get as actively involved.

Take the example of a possible referendum in Quebec dealing with the yes or the no. In a former life, I was an election campaign and referendum campaign organizer, and I find it hard to see what could be done to apportion or divide up the expenses. It would be somewhat chaotic to ask our official agents to determine which part of our trip outside the riding should be allocated to the election and which part should be allocated to the referendum. If I understand correctly, you prefer to keep it separate.

In any event, when the witness was questioned last week, I understood that in Ontario, when it was administrative as it was in the past, the situation was different. However, it was a fairly divisive referendum, if you will...

[Claude DeBellefeuille, Bloc, Beauharnois—Salaberry, QC]

Impassioned!

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Perhaps. Part of Ontario might be as impassioned as us in Quebec, that's true.

It would be a different situation.

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you very much.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

I come from eastern Ontario, and I can be very passionate, whereas in other parts of Ontario... Never mind.

[The Chair, Conservative, Joe Preston]

I, of course, find you that way, Monsieur Proulx.

Mr. Lukiwski, some passion from the western part of Canada.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Chair.

Thank you, gentlemen, for appearing.

I have only five minutes, so I'll try to be brief.

First, I have a request of the clerk. We have the presentation in hard copy from Mr. Croken, but we don't have the hard copy--at least I don't--from the other two presenters. Would we be able to get copies?

[The Clerk of the Committee, Ms. Angela Crandall]

It will be in the transcript that's being produced.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you.

Mr. Croken, I'm curious. You have plebiscite legislation in P.E.I. but not referendum legislation. I'd like to know the history of that. More particularly, are plebiscites binding in P.E.I.?

[Lowell Croken]

The direct answer would be no. A plebiscite is really an expression of interest, but if the vote is strong enough, I believe the government would really have to listen to that vote and react to it.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Why do you not have referendum legislation? Do you think it's unnecessary?

[Lowell Croken]

I believe at this point in time it's considered unnecessary. We haven't had any issues to vote on that required a referendum.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you for that.

I heard the answer from Monsieur Blanchet about whether or not he felt it's a good idea to have referendums in conjunction with provincial elections. I'd like to hear the opinions from Mr. Croken and Mr. Essensa as well.

We'll start with Mr. Croken.

[Lowell Croken]

Thank you.

After hearing the other two presentations, I think my comment is that my only experience in running a plebiscite is with one that was run like a mini plebiscite. As the administrator, if I were to do another plebiscite, I would want to do it province-wide, similar to a provincial election, in all the polling divisions and electoral districts. It's much easier to administer. The costs would be higher, but everyone would know where they should go to vote, and it would be easier to run the whole process than cherry-picking where the polling stations would be.