Madam Speaker, we are debating the amendments in Group No. 2 to Bill C-2, which will revise the Canada Elections Act.
The Group No. 2 amendments include one from Reform which would alter the completely illogical 50 candidate rule for parties to have their name on the ballot down to 12 candidates. In other words, a party that would have 12 candidates running in a general election would be entitled to have its party name on the ballot.
That whole issue is the subject of a court challenge. The communist party of Canada won its challenge to the previous elections act. The court ruled that two members constitute a party, but during the committee proceedings, in my discussions with individuals from the small parties who appeared as witnesses, they all agreed that 12 was a logical number that represents what is recognized as a party in the House. They agreed that 12 would be logical. Unfortunately the minister refuses to accept that as a satisfactory compromise. He is pursuing this ridiculous 50 candidate rule, which will be struck down again by the courts. I just do not understand why he is doing it.
There is a bigger issue in the bill which also has the potential to be struck down by the courts because of a ruling in B.C. during the last few days. Last Thursday the Pacific Press announced the decision against the Attorney General of British Columbia in the Supreme Court of British Columbia concerning the British Columbia elections act. The British Columbia elections act had a gag law in it, the same way that this elections act has a gag law, to prevent third parties from spending money over a certain limit during election campaigns.
I want to read some of the details of the ruling from the B.C. court because that ruling really relates to this bill. I think what is happening is that the minister's bill is imploding at the moment, based on this court ruling, and he really should hoist it right out of here and send it back to committee to have it consider what came out of the B.C. supreme court.
Specifically the court criticizes the Libman decision upon which the minister based his entire case for having the gag law built into the elections act. The minister said that Libman had ruled that it was reasonable to have spending limits on third parties. However, let me read into the record what the British Columbia court decided. It was pointed out in evidence to the court that Professor Richard Johnston, who is a professor of political science at the University of British Columbia, gave evidence that there have only been three studies done in Canada on the effects of third party advertising, two by himself and one by Tanguay and Kay.
I am not going to go into the details of each of the studies, but suffice it to say that Mr. Johnston's initial report of his findings indicated:
In December 1990 Professor Johnston published a paper entitled “The Volume and Impact of Third Party Advertising in the 1998 Election”. In that paper he posited that third party advertising might have helped the Conservative recovery during the 1988 federal election.
This was used as the basis for the Lortie commission report and that was used as evidence before the supreme court judges in the case of Libman.
Unfortunately for the Libman case, in 1992 Professor Johnston and his colleagues published a book called Letting the People Decide . As a result of additional study of the data from his original study, his conclusion was that it is now his opinion that third party advertising had no net effect on voter intentions over the course of the 1988 federal election.
What that means is that the evidence presented to the Supreme Court of Canada in the Libman case was badly flawed, and that was confirmed by the judge in the Supreme Court of British Columbia, the hon. Mr. Justice Brenner, when he said:
Earlier in these reasons I have traced the factual chronology surrounding Professor Johnston's 1990 paper on the 1988 federal election and his subsequent book, Letting the People Decide . I have outlined how he reached different conclusions with respect to the effect of third party advertising. I also set out the manner in which Professor Johnston's initial paper was relied upon by the Lortie Commission which was, in turn, relied upon by the courts in Libman...
Accordingly, the conclusions of the Lortie Commission on this issue can no longer be said to be based on empirical findings. And of course Professor Johnston's later study in Letting the People Decide was not available to the court in Libman.
The judge went on to say:
In addition, in Libman the pressing and substantial objective relied on by the government was not challenged by the plaintiff. Finally, the conclusions in Libman on the issue of pressing and substantial objective are a product of the evidence or its lack thereof in that case and cannot be dispositive of any evidentiary issue in the case at bar. Accordingly, I conclude that Libman is not dispositive of the issues in the case before me.
What that really means, to sort out the legalise, is that if Bill C-2 passes in its present form it will be challenged in court by the National Citizens' Coalition and by the Canadian Taxpayers Federation. Both groups have said that they have more than enough funding to take it all the way to the Supreme Court of Canada. The minister must know that he will lose based on the evidence. There are now three high courts which have ruled that these gag laws are unconstitutional and there is no basis for them.
One of the other things which was struck down in the B.C. case was any restriction on the publication of the results of polls. During the committee hearings on Bill C-2 newspaper people appeared before the committee and I asked them whether the government had ever approached them to discuss or to try to reach some sort of compromise on the publication of poll results during an election campaign. They indicated that the government had never approached them.
During that committee hearing—and the records of that committee hearing show this is the case—I had a discussion and reached a compromise where the polls could be printed right up until the time of the election, but the methodology would have to be printed along with them. That was agreed to. But the minister refused to accept that compromise. As a result, I have to tell him the bad news.
Because the Pacific Press continued with its case, the B.C. supreme court concluded that there is no place whatsoever for any restriction on polling. There are no restrictions on the publication of the results and no restrictions or requirements with respect to the publication of methodology.
This means that the whole thing has been thrown wide open and there is no compromise. There is no methodology to be printed and the newspapers are free to print polls right up until the time of the election without indicating how they conducted those polls or from where they got the results.
This is the mess to which the minister has brought us. There are three separate court challenges of this bill. The 50 candidate rule is illogical and ridiculous. We could have had a compromise reached with all of the parties concerned that would have been 12; not the same as the court concluded at 2, but it would have been logical and accepted by everybody.
The gag law provisions in the British Columbia Elections Act, which are basically the same as the gag law provisions in this bill, have been struck down. It is obvious that this bill has no chance of remaining in place if it is challenged by the Canadian Taxpayers Federation and the National Citizens' Coalition. All of the polling restrictions have been struck down. If the minister had sat down with the parties concerned and reached some sort of compromise we would not be facing this situation today.
This is typical of the government. We see it time after time after time in bills it brings before the House. It has no consultation with the affected parties. It rams things down the throats of the people of this country and it ends up in court, having its restrictions cut down.
I would like to speak a little further on what the B.C. supreme court said. It made the point that in order to override charter rights—we are talking about freedom of expression, freedom of speech in the sense of an election campaign—it is necessary that there be more than a general hypothetical concern about a problem when there is no evidence to demonstrate that it has existed in the past or is likely to exist in the future.
The judge found, based on all of the expert evidence provided at that court case, that there was no evidence whatsoever that third party advertising was the least bit harmful to an election campaign. In fact, the judge concluded that from the lesson of the Charlottetown referendum it is exactly to the contrary, that there is a strong argument in favour of third party advertising.
Quoting from the judgment of the hon. Judge Brenner concerning the Charlottetown referendum, there are certain circumstances in which the goal of fairness in elections would support an argument for third party advertising. The Charlottetown referendum provides an example. If in a future election campaign in British Columbia all of the political parties were to agree on a significant policy point, the lack of an effective third party advertising campaign would be a detriment to the voters.
The ruling is 88 pages long. I wish I could read more of it into the record. The minister must have seen it. He knows he is going to lose this case. Why will he not withdraw the bill, send it back to committee and let us have another look at it?