Mr. Speaker, I will preface my comments today by pointing out that the government has moved time allocation on this bill. It is the 23rd time in this parliament that it has moved time allocation on a bill before the House. It has preliminarily closed debate on bills 23 times since the start of this parliament.
Bill C-2 is an example of a flawed bill that the Liberals want to ram through the House. They do not particularly want it to be examined in this public place so they have limited the time for debate. I can see the minister burying his head in shame. I want to remind him that since we began debating the bill in the House, the Reform Party has had only two hours and forty minutes out of a total of seven hours and twenty-three minutes to debate a bill which the minister himself has said, has not been dealt with for 30 years.
Before making my own comments, I will deal with a few things that were said by the minister. He said that we had improved the Canada Elections Act by combining the results of all the parties working together in the House. However, a few days ago we voted on the report stage amendments to Bill C-2 and there were close to 80 amendments proposed by the opposition. I think this shows the minister that the opposition was far from satisfied with the process to that point. If close to 80 amendments were being proposed at report stage, then the minister must be wrong when he says that the elections act has been improved.
He also mentioned that he had travelled during the break last fall to talk with academics and students across the country. The funny thing is, the minister would not allow the committee to travel across the country to talk with academics, students and interested parties even though we had made requests to do so. I actually heard him on the radio talk show CKNW in Vancouver. I remind the minister that the callers absolutely trashed the gag law component in Bill C-2 and he had a fairly rough ride from the callers on CKNW in Vancouver.
He also mentioned the Libman decision. I will come back to that in a little more detail because it does deserve some detailed comment, in particular because of a court ruling that came out of British Columbia on February 9. The minister knows that he is clutching at straws when he quotes Libman. He also knows that it will cost taxpayers a lot of money to defend this flawed bill. What he should have done was had discussions with third party interests and tried to reach some accommodation.
The minister also talked about the release of results and how things had been done in the bill to make sure that westerners did not see the results of the election before their polls had closed. Even the Chief Electoral Officer told the minister that with the Internet in place now it was almost impossible to prevent the transmission of results. If people want to see them they can dial up the website for Scarborough—Rouge River, for example, where they may have already posted their own local results after the polls close in Ontario. There is really no effective way of preventing the distribution of results.
The publication of polls is another area that has just come under court challenge in British Columbia. A very important result came out of the province on February 9 which put into question the entire section of the bill to do with publication of polls. I will deal with that a little later as well. I will come back to third party spending limits too because they are an important part of the bill.
As the minister wrapped up his speech he mentioned our electoral system being admired around the world. That is just plain wrong. The Chief Electoral Officer was questioned at length in committee by members of all parties about the patronage system which is riddled throughout the elections act. The Chief Electoral Officer has no power over who is appointed as a returning officer or a deputy poll clerk. All those positions are patronage appointments put in place by the parties.
When the Chief Electoral Officer was asked whether he would recommend our Elections Act to any third world country or an emerging democracy, and I asked him that question, he said he would not. There is no way that he would recommend Canada's Elections Act to a third world country or an emerging democracy. He did not say what the minister just said, that our act is admired around the world. He said the act was not fit for a third world country. I remind the minister that the act is far from perfect.
Notwithstanding the fact that the minister took great pains to point out the various amendments that were finally accepted by the minister during the committee process, as I mentioned almost 80 amendments were proposed by the opposition parties in the House. We went through a lengthy voting session two nights ago. We were up until 12.40 in the morning voting on almost 80 amendments. That proves absolutely that the opposition parties were not satisfied with what happened at committee.
It is now crystal clear that the government sent the bill to committee before second reading with the intention of keeping it out of the public spotlight, despite the claims of the minister that the process was designed to accommodate meaningful amendments.
Not very many significant amendments were made in committee, even though the official opposition, third party witnesses, the print media, broadcast witnesses, small parties and many other expert witnesses made suggestions, good ones, on ways in which the bill could have been made more democratic.
The elections act is so biased toward the parties with seats in the House that it is normal for any changes to the elections act to be slipped through on a Friday afternoon when there is hardly anybody here. I know the people who are watching this debate on television do not have a vista of the House right now, so they cannot see or have any idea who is here and who is not.
I know I am not allowed to mention the presence or not of members in the House, but it is a well known fact that when the government wants things to slip through quietly without too much attention it does it on a Friday afternoon when it can be done with a lot of ease because hardly any members are present.
In this case I know the minister started off thinking he would be able to push the elections act through in that manner. He was quite surprised to find that initially the official opposition was vigorously opposed to some parts of the bill. That was joined then by the other opposition parties and we turned it into a bit of a nightmare for the minister. He has moved closure on debate now to try to ram it through on a Friday before we all go home for a break.
Elections acts should be politically neutral and should be supported by all parties in the House. They should be supported by the Chief Electoral Officer. They should be supported by the voters. That is not the case with the elections act. It is opposed by all those groups.
The government has wasted an opportunity to modernize and democratize the act. The new act does little more than renumber the paragraphs in the old act. At the same time it tries to reintroduce sections that have already been struck down by the court. The bill maintains the most objectionable provisions of the old act, especially those that benefit the ruling party, which in this case is the Liberal Party.
The bill does nothing to address serious public concerns involving campaign financing, party registration requirements, the timing of byelections, third party spending issues and patronage appointments within elections canada.
The rights of electors and third party participants in the democratic process continue to be trampled by provisions which adopt a paternalistic role in terms of dictating how much money can be spent and presuming to decide for electors who is a frivolous candidate and who is not.
In drafting the bill the government virtually ignored the work of the Standing Committee on Procedure and House Affairs, even though the minister made reference to that report. The government also ignored several decisions of various courts and the Supreme Court of Canada.
The government is very inconsistent in the way it looks at court rulings. Given its past reluctance to go against any court ruling by introducing the bill and pushing it through the House, the government is saying that it is okay for the courts to make child pornography legal and to allocate fisheries according to race, but it is not okay to touch the elections act or anything that affects our ability to get elected, especially if it is the ruling party.
Returning to some specifics of the bill, I will deal first with third party spending. Let us look at the effect of third party spending. I think everybody would agree, if one candidate only has $1,000 to spend—and that is certainly the case with some of the smaller parties—and another candidate like myself has an allowance of $60,000, that there is an imbalance. I think everybody would agree that my $60,000 would allow me to put up billboards and to run advertisements on radio and television. The smaller party candidate who only has $1,000 would be lucky if he or she could put up one or two billboards and would truly be at a disadvantage.
If we are looking at the difference between $100,000 and $1 million in a riding there will not be much difference. If I could spend $100,000 on billboards and advertisements and somebody else came along with $1 million, he or she would have so many billboards and so many advertisements that it would actually be an irritation that would work against the interest of that third party. Even if there is an influence from third party spending, relatively speaking it is not great when we consider that candidates get to spend $60,000 or more and the parties get to spend a lot more.
The minister spent a lot of time talking about Libman at which point I mentioned that he was clutching at straws. In Libman v Quebec the supreme court struck down the third party spending limit in the Quebec referendum act as too restrictive. It said that reasonable spending limits were both constitutional and desirable and left it up to the legislatures and parliament to determine a reasonable limit. However the supreme court decision is in conflict with two separate decisions in the court of Alberta and the February 9 decision in the B.C. supreme court which struck down all third party spending limits as unconstitutional.
The supreme court decision dealt with spending during a referendum campaign whilst the other three courts dealt with spending during election campaigns. It therefore appears that the minister is clutching at straws when he uses the Libman decision based on referendums to try to defend a gag law in an elections act. Furthermore, the main evidence in the Libman case was based on the Lortie report which as the minister stated is some nine or ten years old. The Lortie report was based on a preliminary report by a UBC political science professor named Richard Johnston.
His report indicated that third party spending—and this was a preliminary report—might influence election outcomes. However, Mr. Johnston filed his final conclusions a few years later in which he said that third party endorsements had no discernible effect on election outcomes. That is the flaw in the Libman case.
In his ruling in the B.C. case Justice Brenner stated that there was no evidence which would allow him to conclude that third party spending or advertising had any impact on voter intentions and that to override charter rights it was necessary that there be more than a general hypothetical concern about a problem when there was no evidence the problem existed in the past or is likely to exist in the future.
The Libman case was based on the Lortie report, which was based on flawed evidence. The B.C. court pointed out that flawed evidence. If the minister forces the issue back into court—and certainly the Canadian Taxpayers Federation and the National Citizens' Coalition have said they would take it there—he will lose. There is no doubt that referendum spending is different because it only relates to a yes and no answer to a question, whereas elections involve an enormous number of issues and candidates. The same rules cannot be applied, and in any case not a single study in the world indicates that third party spending can be linked conclusively to an election result.
Mr. Gerald Chipeur, a constitutional lawyer with the firm of Fraser Milner, has successfully challenged unfair sections in both the provincial and federal elections acts. He told the procedure and House affairs committee that the Libman decision would likely not survive a challenge because of its applicability to referendums rather than to elections.
In addition, one group that appeared before the procedure and House affairs committee was Environment Voters. In support of its arguments against third party spending limits, it provided an opinion letter from barrister Clayton C. Ruby of Ruby and Edwardh, a law firm in Toronto. In his letter Mr. Ruby stated that in his view third party spending limits could not be justified under the constitution. He also made reference to the Libman decision by stating:
—these limitations were postulated by the Court in the context of a simple yes/no proposition being put to the electorate of one province. Limitations that are appropriate to this kind of narrow and focused question are simply inappropriate to the broad complexities and shaded nuances of a many sided campaign for a general election...I believe these new proposals for a campaign spending limitation are flatly unconstitutional.
The supreme court passed an opinion on the Alberta court's striking down as unconstitutional spending limits in the elections act. The supreme court put out its opinion that it did not think the Alberta court's ruling was valid in terms of elections even though the supreme court had not studied the evidence. It was not a ruling based on evidence. Yet the minister continues to cite the supreme court's comments as justification for imposing spending limits on third parties.
Far from levelling the playing field, if the supreme court decision were to be upheld it would give advantage to the Liberals because it restricts the ability of any other person or group to counter government propaganda during an election.
The new bill limits third party spending to $150,000 for a general election, of which no more than $3,000 may be spent in any particular riding. This is in stark contrast to the total election spending limit for the Liberal Party of Canada which is close to $30 million. Of this amount, approximately $18 million is allocated to its 301 candidates in the form of their individual campaign expenses, while the remaining $11 million can be spent directly by the party.
By way of comparison, for the 1997 general election the election expenses limit for the Bloc Quebecois was $3.02 million. For the PC Party it was $8.5 million. For the NDP it was $11.4 million and for Reform it was $8.5 million. Let us remember that these were the maximum amounts allowed and not necessarily the actual amounts spent. They are based partly on the number of candidates running.
I already mentioned that the National Citizens' Coalition and the Canadian Taxpayers Federation intend to challenge third party spending limits as unconstitutional. They are confident of winning their case based on what has been learned from the Alberta, the B.C. and the Quebec court decisions.
It is not the place of the government to limit the right of individual Canadians or groups of Canadians to spend their own money in support of a cause or candidate. The right to spend one's own money on election advertising is a right which is just a valid for the poor as it is for the wealthy. It would have been a much better approach to consult with third party interests across the country in an effort to reach a compromise on reasonable spending limits. That way the expensive cost of court challenges, which will eventually strike down all the limits, could have been avoided.
In completing this section I would mention as evidence that third party spending cannot be tied directly to any outcome. During the referendum on the Charlottetown accord the yes side lost even though it spent 10 times as much as the no side. During the 1993 election the PC Party spent many millions of dollars more than any other party in the race and yet had only two members elected to the House. Reform, which spent one of the smallest amounts per member, had 54 members elected to the House. In addition, referenda conducted in Switzerland and California over several decades show no correlation between the amount spent by each side and the final voting result.
Even if third party spending did make a difference in elections, why would we be opposing that? Elections are supposed to be for the voters. If the voters are upset or pleased with any candidate, why should they not be permitted to spend their own hard-earned money on opposing or endorsing that candidate as they see fit? What right does the government have to interfere in their freedom to express their opinion about a candidate?
I am prepared as a member of this House to have any third party spend anything it wants in my riding. I believe that as long as members of the House are following the will of their constituents, they will not be removed from office. It is when they choose to represent their party view or their own personal view over the will of their constituents that they get kicked out of office. That is why many members are afraid of third party spending limits. They are afraid that if they do not obey their constituents' will and instead obey their party will or personal will, they will be thrown out of office.
I have one more quote from the ruling of the B.C. Supreme Court on February 9 regarding third party spending. The court said: “There are certain circumstances in which the goal of fairness in elections would support an argument for third party advertising. If in a future election campaign all of the parties were to agree on a significant policy point then the lack of third party advertising would mean that the people would be limited to the views of the major political parties and media commentators. The third party spending limits would effectively silence citizens who wished to express a contrary view”.
That is an argument right from a judge of the Supreme Court of British Columbia. It supports the idea of third party spending limits. I find that an interesting and supportable argument.
Turning to the publication of poll results during the blackout period, in the case of Thomson Newspapers v the Crown, previous legislation preventing the publication of poll results in the final 48 hours of an election campaign was struck down. The government is now imposing a 24 hour blackout even though the print media have declined to give any assurances that they will not again challenge this provision in court.
I would say that the print media probably have been encouraged to take this back to court by the ruling which just came down from the British Columbia court. The British Columbia court has struck down yet again any blackout provisions on the release of poll results and it went every further. It said there should not even be a requirement to print methodology for the polls. What the court in B.C. has said is that there is no right of government to interfere in the publication of polls or even the methodology for those polls.
The government rejected a suggestion that I made in committee and which was accepted as a compromise by the media, that they could print poll results right up until the time of the election but they would have to print the methodology so that voters would know how those poll results were obtained. The minister rejected that compromise. Now the court is striking down the entire provision that was in the act. We have ended up with something worse than if we had accepted the compromise which I negotiated with the parties during committee.
Clause 326 of the new elections act requires that the first person to transmit poll results and anyone who transmits them in the 24 hours thereafter, must provide the details of the poll methodology. However, in the recent Pacific press case in British Columbia, Justice Brenner struck down the provisions requiring publication of such information on the grounds that it offends the principle of freedom of the press which is guaranteed under section 2(b) of the charter of rights.
As in his ruling on the matter of third party spending, Justice Brenner applied the rule that in order for a law to justifiably override a guarantee under the charter, it must be demonstrated that there is a pressing and substantial need for such legislation. He concluded that there is no history of false or misleading elections opinion surveys being published, that there is no evidence that any individual has encountered any difficulty in obtaining methodological information from the sponsoring media outlet, and very few individuals are interested in obtaining such information beyond the customary information routinely provided by the media.
Justice Brenner therefore concluded there is no pressing and substantial need for these requirements and he struck down the law. We now have the British Columbia case of February 9 pushing another section of the minister's elections act right out the window.
Public opinion begins to form long before the election writs are issued. It continues to be shaped throughout the election period and after based on the many types of information and issues that are being discussed. To suggest that voters will change their allegiance on the basis of poll results a few minutes before they go to the polls is absolutely ridiculous.
In committee the Chief Electoral Officer of Ontario had this to say about blackout provisions: “I have concluded that the blackout has no truly useful purpose and therefore ought not to be imposed on the electorate for electoral process. It is unnecessary and it limits the constitutional right otherwise given to Canadians. I suggest that Bill C-2 not impose blackouts at all”. He also stated that enforcement of blackout provisions is virtually impossible.
Constitutional lawyer Gerry Chipeur, whom I mentioned earlier, in his presentation to the committee said that of all of the provisions in this bill that fly in the face of court decisions, the blackout provision is the most certain to be struck down.
Turning to another court case on the requirements for registered party status, in March 1999 an Ontario court struck down the sections of the elections act which would require a party to run 50 candidates in an election to remain on the register and to have its candidates listed with party affiliation on the ballot. The court indicated that two candidates should be sufficient to constitute a party. However all of the small parties who appeared before the Standing Committee on Procedure and House Affairs, including the Communist Party of Canada which had challenged the law and had it struck down, said that the number 12 as contained in a private member's bill which I had put forward to the House was an acceptable compromise.
All members will know that the number 12 relates to the recognition of party status in this House. The position I put forward in committee was that 12 was a sensible number as opposed to two, which most people would think was a bit low.
If the government had bothered to consult with the affected parties an acceptable compromise could have been reached because all of the parties agreed to 12. Then we could have finished this whole legal court challenge, put it to bed and we would have had a workable number in the bill. However, the minister refused to accept it and now that case is going to appeal on March 2 and 3, in a couple of weeks. Right about the time that this bill goes to the Senate we are going to have a court case probably striking down provisions in the bill. It is totally ridiculous the way the minister has handled this matter.
The court said that we could have a party of two people and that is clearly what the court will ultimately decide again. Instead of 12 we are going to end up with two. The minister foolishly has plunged ahead with his number when there is every piece of evidence to support a higher number.
In fact in committee when he was asked about it, the minister said, “Obviously given that I am the minister who suggested to have the appeal, I am of the opinion that it works just swell the way it is”. I think that shows the intransigence of the minister on this. He is quite happy to ignore the ruling of the Ontario Court of Appeal because he does not like the number 12 or the number two.
The position the official opposition takes is that elections are for the voters. The government takes the position that elections are for the parties. The reason it wants the 50 candidate rule is because it does not want competition from small parties. The government thought back in 1993 that the Reform Party would not be able to get 50 candidates so we would not be able to have our party name on the ballot. It thought that was a great way to prevent us from ever coming to the House of Commons. It was wrong because here we are.
The government is still trying to prevent any other party from getting a foothold in this place and it is wrong. Voters have a right to know that if there is a candidate on their ballot, that that candidate has a relationship to some other candidate in another riding by means of party affiliation. It makes sense for openness and the conveyance of information to voters that there be a party name on the ballot beside every candidate who is a member of a party, regardless of whether that party runs 12 candidates or 50 candidates in the election.
Turning to patronage appointments, one of the worst parts of the whole elections act and the piece that the Chief Electoral Officer criticized three times in three separate appearances at committee was the patronage appointments in Elections Canada.
The Chief Electoral Officer cannot even appoint his own returning officers. All 301 returning officers are appointed by the Prime Minister of Canada. They are Liberal patronage appointments to what should be non-partisan positions throughout Elections Canada. It is a disgrace. No wonder the Chief Electoral Officer will not even recommend our elections legislation to a third world country because of the patronage that is riddled throughout it. He told the committee how difficult it is to get rid of an incompetent returning officer because he cannot go to the Prime Minister and say “Your political appointee is incompetent and an idiot who should be removed from office”.
Every one of the opposition parties tried to get the government to change that rule and to allow the Chief Electoral Officer to advertise based on competence and ability to do the job.
That whole system of patronage runs right through Elections Canada with all the political parties being able to appoint people at the lower echelons within the structure. Certainly many of my Reform colleagues and I refused to do that in the last election. We insisted that the returning officers advertise in the newspaper for qualified people. That is the way it should be done.
We are coming very close to question period. At this stage I would like to put forward an amendment.
I move:
That the motion be amended by deleting all the words after the word “That” and substituting the following therefor:
Bill C-2, an act respecting the election of members to the House of Commons, repealing other acts relating to elections and making consequential amendments to other acts, be not now read a third time, but be referred back to the Standing Committee on Procedure and House Affairs for the purposes of:
Reconsidering clause 350 in light of the B.C. Supreme Court ruling of February 9, 2000 that struck down gag law provisions in the B.C. Elections Act and prior similar rulings of the Alberta Court of Appeal with due regard for the constitutional right of Canadian citizens to free expression;
Reconsidering clause 370 in light of an Ontario court ruling that struck down provisions requiring political parties to endorse a minimum number of candidates in a general election in order for the party to be registered, with due regard for the right of small, regional and nascent political parties not to be disadvantaged such as by having their names excluded from the ballot;
Reconsidering clauses 324 to 328 in light of the B.C. Supreme Court ruling of February 9, 2000 that struck down provisions in the B.C. Elections Act imposing a blackout on the publication of poll results and requirements for the publication of methodological information, with due regard for the constitutional right of Canadians to free expression;
Reconsidering clause 13 with due regard for the democratic principle that the Chief Electoral Officer should be selected in a non-partisan and democratic fashion rather than being unilaterally and arbitrarily appointed by the government of the day;
Reconsidering clause 24 with due regard for the entreaties of the Chief Electoral Officer that he be allowed to hire returning officers according to merit as determined through competitions open to all qualified Canadians, to insulate the appointment process from partisanship;
Reconsidering clause 26 with due regard for the principle that the electoral system and all of its agents constitute the very foundation of the democratic process in Canada, and as such the appointment of assistant returning officers should be free of real or perceived political bias;
Reconsidering clause 34 with due regard for the importance of insulating the process for appointing deputy returning officers from patronage, nepotism and partisanship;
Reconsidering clause 35 with due regard for the principle that poll clerks should be hired impartially on the basis of merit rather than being appointed by the government of the day according to political affiliation;
Reconsidering clause 57 with due regard for the danger that the timing of general elections could be manipulated for reasons of political opportunism by the government of the day;
Reconsidering clause 59 with due regard for the right of Canadian citizens who are inflicted by natural or man-made disaster to have full and fair opportunity to participate in the electoral process;
Reconsidering clause 67 with due regard for the constitutional right of all Canadians, regardless of wealth, to be qualified for membership in this House; and
Reconsidering clause 143 with due regard for the potential for abuse of the electoral process such as the casting of multiple ballots by a single voter on behalf of imaginary friends or the registration of household pets as voters.
