Electoral Insight - Election Legislation Enforcement

Electoral Insight – March 2003

Electoral News in Brief

Government Proposes Major Changes to Political Financing

The federal government has introduced legislation to make major reforms to the rules governing the financing of political parties and candidates and to extend them to certain other political participants. Bill C-24, An Act to amend the Canada Elections Act and the Income Tax Act (political financing), was introduced in the House of Commons on January 29, 2003, by the Honourable Don Boudria, Minister of State and Leader of the Government in the House of Commons. If passed, it is to come into force six months after receiving Royal Assent or on January 1, 2004, whichever is later.

This bill addresses a number of issues covered in Modernizing the Electoral Process, the Chief Electoral Officer's 2001 report to Parliament. In it, he made a number of recommendations to improve transparency in election financing by extending disclosure obligations to electoral district associations, and party nomination and leadership contests. He also recommended limits on all political contributions, other than to leadership contestants, and on spending in party nomination contests. The Chief Electoral Officer underlined the right of Canadians to know who is financing the political process in Canada, which he said is essential "for maintaining the trust of Canadians in the integrity of the process and their continued participation in it."

Overview of proposed changes

The government's bill contains provisions that, with minor exceptions, will allow only individuals to contribute to candidates, political parties, their local associations, and nomination and leadership contestants. The proposed amendments would also require greater disclosure of sources and amounts of financing, and increase public funding to the participants in election campaigns. As well, for the first time, the legislation would provide for electoral district associations and party nomination and leadership contestants to register with and report the contributions they have received and their expenses to the Chief Electoral Officer.

The government says these changes would enhance the fairness and transparency of the electoral system. "Canadians want access to full information about how much political parties and candidates collect, and whom they collect it from," stated Mr. Boudria, in a January 29, 2003, press release. "We are determined to eliminate even the perception that individual Canadians have less influence than corporations and unions in our electoral system."

Contributions

Corporations, unions and associations would be barred from making contributions to any registered party or leadership contestant. However, they would be allowed to contribute up to $1 000 in total per year to a party's candidates and nomination contestants, as well as its registered electoral district associations. Under the proposals in Bill C-24, an individual's contributions to a registered party and its registered electoral district associations, candidates and nomination contestants would be limited to $10 000 per year. Individuals would also be restricted to a maximum of $10 000 in donations to the leadership contestants of a party, during a leadership race. Currently, political contributions can be made by individuals, corporations, unions and other organizations, and there are no limits on the amounts.

Greater disclosure of sources and amounts

Transparency would be further enhanced by extending disclosure requirements to registered electoral district associations and leadership and nomination contestants. Currently, only candidates and registered political parties are required to disclose sources and amounts of contributions. All contributions of more than $200 and the name and address of the person or organization making the donations would have to be reported to the Chief Electoral Officer.

Nomination contestants would be required to disclose that information and the expenses they incurred within four months of the nomination contest. Leadership contestants would need to register with the Chief Electoral Officer. In each of the four weeks leading up to their leadership convention, they would be required to submit reports disclosing the amounts and sources of contributions they had already received. Finally, six months following the leadership convention, they would have to submit information about additional contributions received and expenses incurred.

Spending limits for nomination contests

Bill C-24 would introduce spending limits for nomination contestants. Their spending would be limited to half the amount a candidate in that district was allowed during the previous election period. At present, only candidates and registered political parties are subject to spending limits, which apply during elections.

Public financing

The provisions of the new bill would also increase the public funding available to registered political parties and make it easier for candidates to qualify for reimbursements of election expenses. A candidate would need 10 percent of the votes in the electoral district in order to qualify for reimbursement, instead of the current 15 percent. The reimbursement rate on election expenses for registered parties would rise from the current 22.5 percent to 50 percent, to make it equal to the rate for candidates. In addition, a registered party would receive an annual allowance of $1.50 per vote obtained by that party in the previous general election, provided it received either 2 percent of the valid votes cast nationally or 5 percent in the districts where it ran candidates. The allowance would be paid in quarterly instalments.

Meanwhile, to encourage contributions by individuals, Bill C-24 would also amend the Income Tax Act to double the amount of an individual's donation that is eligible for a 75 percent tax credit, from $200 to $400. The maximum tax credit for a political donation of $1 275 would rise to $650.

Federal Government Appeals Ruling on Third Parties

The federal government has asked Canada's highest court for permission to appeal a ruling that struck down limits on how much third parties can spend on advertising during a federal election. On February 14, the government requested the Supreme Court of Canada for leave to appeal a December 16, 2002, decision by the Alberta Court of Appeal. Third parties are individuals and groups other than candidates, registered political parties or their electoral district associations.

The limits were part of the new Canada Elections Act that came into effect shortly before the 2000 federal general election. Under that legislation, a third party could spend a maximum of $150 000 nationally on election advertising. Of this amount, it could spend no more than $3 000 to promote or oppose the election of any one candidate in any single electoral district. For by-elections, the maximum was $3 000 for each electoral district.

The Alberta court, in a two-to-one decision, ruled there was insufficient evidence to justify the legislation's restrictions in a free and democratic society. "The government has failed to establish that the sections address a pressing and substantial concern," wrote Madame Justice Marina Paperny. The court also overturned sections of the law requiring anyone who incurred more than $500 in election advertising expenses to register with Elections Canada.

The legislation was in effect for the 2000 general election, but not for the nine federal by-elections held in May and December 2002. On June 29, 2001, Mr. Justice Cairns of the Alberta Court of Queen's Bench ruled that sections 350 and 351 of the Canada Elections Act, respecting third parties' election advertising expenses, were no longer in force. In October 2000, the Chief Electoral Officer of Canada, Jean-Pierre Kingsley, had appeared as an intervenor before that court. After the lower court ruling, he announced that in order to achieve fair application of the Act across the country, the Alberta court decision would be applied nationally.

The constitutional challenge to third party limits was launched in June 2000 by the president of the National Citizens Coalition, Stephen Harper, before he became leader of the Canadian Alliance party.

Federal Prison Inmates Win Right to Vote

A Supreme Court of Canada decision allowing inmates of federal penitentiaries to vote in federal elections was quickly implemented by Elections Canada. The court decision was rendered on October 31, 2002, a day before the writs were issued for two federal by-elections. The Chief Electoral Officer of Canada, Jean-Pierre Kingsley, applied the Special Voting Rules for incarcerated electors to inmates in federal penitentiaries.

Canadians serving a term of less than two years in a correctional institution in Canada already had the right to vote. The Supreme Court, in a five-to-four ruling, struck down a section of the Canada Elections Act adopted in 1993 that barred prisoners serving terms of two years or more from voting. A series of lower court rulings had effectively allowed all inmates to vote in the 1993 and 1997 federal elections. The right for those serving two years or more, however, was revoked following a 1999 decision by the Federal Court of Appeal upholding the validity of the prohibition.

In the latest court decision, Chief Justice Beverly McLachlin wrote on behalf of the majority that "the right to vote is fundamental in our democracy and the rule of law and cannot be lightly set aside." The majority found that paragraph 4(c) of the Canada Elections Act violated the Canadian Charter of Rights and Freedoms and that this violation could not be justified under section 1 of the Charter. The federal government had argued that the voting ban was a legitimate punishment in addition to a prison term and that allowing inmates to vote would demean the electoral system. The challenge to the ban was first launched 18 years ago by paroled inmate Richard Sauvé, while he was serving a life term for murder.

An estimated 12 000 inmates are affected by the latest court ruling. The first opportunity for inmates to vote following the ruling was in the December 9, 2002, by-elections in Lac-Saint-Jean—Saguenay and Berthier—Montcalm, in Quebec.

To vote in a federal electoral event, incarcerated electors must register by filling out an Application for Registration and Special Ballot, which is made available through each correctional institution. A staff member in the institution serves as a liaison officer and helps the electors register. For electoral purposes, an inmate's address of ordinary residence is not the institution in which he or she is serving, but rather the first possible option from the following list: the inmate's residence before being incarcerated, the residence of a spouse or a relative, the place where the elector was arrested or the last court where he or she was convicted and sentenced. Votes are counted and applied in the electoral district of the address an inmate has identified, rather than the electoral district that includes the institution.

Federal Representation 2004 Update

The results of more than one year of work by 10 independent federal electoral boundaries commissions are expected to be proclaimed in July 2003 or shortly thereafter. The process of readjusting electoral district boundaries, which is tied to the decennial census, has been ongoing since March 12, 2002, when the Chief Electoral Officer of Canada received the latest census return from the Chief Statistician of Canada.

Articles published in the May and October 2002 editions of Electoral Insight described the initial steps of the process. First, the Chief Electoral Officer used the census figures to calculate the number of seats allocated to each province, applying the formula and rules set out in sections 51 and 51A of the Constitution Act, 1867. Based on this formula, the House of Commons will increase by seven additional seats: three for Ontario, and two each for Alberta and British Columbia. In all other provinces, the number of seats remains the same. On April 16, 2002, under s. 13 of the Electoral Boundaries Readjustment Act (EBRA), 10 independent commissions were assigned the task of readjusting the federal electoral boundaries of their respective provinces. This date marked the beginning of a one-year period during which the commissions must produce a final report [s. 20(1), EBRA].

The Chief Electoral Officer may, on request by a commission, extend the time for the completion of its report for up to six months [s. 20(2)]. None of the commissions requested an extension.

Between June and August 2002, the proposals of each commission were published in the Canada Gazette and at www.elections.ca, Federal Representation 2004. Across Canada, 115 public hearings were scheduled and approximately 2 090 representations were received by the commissions from individuals or groups who wished to comment on the proposals. This figure is more than triple the number of representations received in 1994 and more than double the number in 1987.

Although not all representations are heard at public hearings (approximately 950 were heard), each commission seriously considered all representations when completing its report. Some individuals preferred to forward a written representation to the commission and some requested that their representations be read at a public hearing.

When the Chief Electoral Officer receives a commission's report, he transmits it to the Speaker of the House of Commons, who then tables and refers the report to the Standing Committee on Procedure and House Affairs (a copy of the report is then posted on the Elections Canada Web site). While each report is in Committee, members of the House of Commons have another opportunity (in addition to the public hearings) to give their feedback about the proposed changes. Ultimately, the final decision rests with the commission in each province.

As of March 28, 2003, the reports from the commissions for all provinces had been transmitted to the Speaker of the House of Commons for tabling before the Standing Committee on Procedure and House Affairs.

The House Committee began its work on redistribution in January 2003. As each report becomes available, members of the House of Commons have 30 calendar days to examine it and to file objections with the Committee. An objection must be signed by not less than 10 members of the House of Commons. The Committee then has 30 sitting days to consider the objections and return a report to the Speaker, together with a copy of the objections and of the minutes of its proceedings. This report may include background information on redistribution, general comments by the House Committee regarding the process and reports of the commissions, legislative provisions, a summary of the main concerns of members, objections filed and suggestions offered by members, and recommendations by the Committee.

The Speaker refers the report (as well as a copy of the objections and of the minutes of proceedings and evidence of the Committee) to the Chief Electoral Officer, who sends it to the commission for consideration. The commission then has 30 calendar days to consider and dispose of the objections and to provide a certified copy of a report in which it responds to the objections filed by members of the House of Commons. In considering these objections, the commission bears in mind the representations of the public hearings that preceded the report. This final report is returned to the Chief Electoral Officer for transmittal to the Speaker.

It is expected that the proclamation and publication of the representation order in the Canada Gazette will occur between July 21 and 30, 2003 (s. 26, EBRA). Provided the representation order is proclaimed during that period, it will be in force upon the first dissolution of Parliament that occurs no earlier than July 21, 2004 (s. 25, EBRA). The one-year intervening period gives members of the House of Commons, political parties and Elections Canada time to adjust to the new electoral map.

On-line Voter Registration Feasibility Study

Elections Canada is examining the feasibility of developing and implementing an on-line voter registration system. A study provided in November 2002 by CGI Information Systems and Management Consultants Inc. sought to identify the operational, legal, technical and privacy considerations associated with the development of an on-line voter registration system and to recommend a strategy for implementing such a system. It was based on consultations with internal and external stakeholders and an environmental scan of similar initiatives in Canada and around the world.

The feasibility study reflected Elections Canada's commitment to exploring new mechanisms that would facilitate the processes by which electors add, update or confirm their elector information between and during electoral events. It also followed up on a commitment made in the Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000 to study "the feasibility of secure on-line registration and verification" as a method of improving the National Register of Electors.

The Register is a database of Canadians who are qualified to vote. It contains basic information about each person — name, address, gender and date of birth. Canadians may choose whether or not to have their names listed in the Register. The information in the Register is used to produce the preliminary lists of electors for federal elections, by-elections and referendums. It may also be used to produce the preliminary lists of electors for provinces, territories, municipalities and school boards that have signed agreements with Elections Canada, as permitted by the Canada Elections Act and provincial and territorial statutes.

The study's chief finding was that implementing on-line voter registration is feasible for Elections Canada, assuming legal and user authentication issues can be resolved. For the short term, it recommended that Elections Canada provide downloadable registration forms on-line and enable electors to confirm on-line whether they are on the list of electors. For the longer term, it recommended that other registration transactions — being added to or removed from the list of electors or the Register and having information changed — be implemented incrementally. The report also recommended that partnerships be established with key agencies and initiatives such as Government On-Line to resolve common security, privacy and authentication issues and that Elections Canada align its service delivery channels to offer the same services to electors irrespective of the communication medium used (i.e. telephone, on-line, mail or in person).

Elections Canada surveys conducted after the November 2000 general election found support for on-line registration has been growing, with 70 percent of electors stating that they would like to register to vote on-line, if technology allows. Support increased when respondents were reassured about security concerns. In addition, stakeholders such as Aboriginal electors, special needs electors and the academic community indicated strong support for on-line voter registration.

Elections Canada is presently studying the report's recommendations. The availability of an on-line voter registration system complementing existing paper-based registration methods has the potential of providing improved service to electors, reducing the number of elector calls and transactions that occur during an electoral event, and improving the quality of data contained in the Register.

Additional information about Elections Canada's on-line voter registration strategy will be provided in future editions of Electoral Insight.

Elections Canada Assists Afghanistan in Preparing for Elections

Elections Canada is providing support and technical expertise to the United Nations Assistance Mission to Afghanistan (UNAMA) to help Afghanistan (Transitional Islamic State of Afghanistan) prepare for general elections that have been tentatively scheduled for June 2004. The assistance was announced on January 13 by the Chief Electoral Officer of Canada, Jean-Pierre Kingsley.

Under the general leadership of UNAMA, Elections Canada is providing strategic oversight for the Elections and Registration in Afghanistan (ERA) Project in co-operation with the International Foundation for Election Systems (IFES). IFES provides professional advice and technical assistance in promoting democracy, and serves as an information source on democratic development.

The Chief Electoral Officer appointed Mr. Jean-Jacques Blais as the Head of Mission for the ERA project. Mr. Blais is responsible for the overall conduct of the ERA project. Mr. Blais is a former federal minister and has been a member of seven election observation teams organized by the Commonwealth, the Organization of American States and the United Nations. He led the Commonwealth observation team in Cameroon. Mr. Blais was Deputy Chairman of the Provisional Election Commission for Bosnia Herzegovina and was invited by Yemen to review proposals on electoral reform.

Under the Bonn Agreement, UNAMA will support Afghanistan in conducting elections. The Canadian government, through the Canadian International Development Agency, has allocated $1.5 million in assistance for the ERA project. The project will focus on five components of an electoral system: institutions and systems of representation as established in the constitution and electoral law; election administration; voter registration and identity documents; political parties and campaigning; and media and monitoring.

Global Bill of Electoral Rights for People with Disabilities

Senior election administration officials, disability rights experts and activists, and parliamentarians from more than two dozen countries have drafted a global Bill of Electoral Rights for People with Disabilities. The joint declaration was officially launched at a September 2002 meeting in Sigtuna, Sweden. While not a legally binding document, it outlines the responsibility of countries to ensure that people with disabilities have the same rights as other citizens in participating in the electoral process. Among the participants from Elections Canada were the Chief Electoral Officer, Jean-Pierre Kingsley, Deputy Chief Electoral Officer and Chief Legal Counsel, Diane Davidson, and Director of Operations, Luc Dumont.

The bill resulted from the work of the International Institute for Democracy and Electoral Assistance (International IDEA) and the International Foundation for Election Systems to bring together concerned parties as equal partners to develop such an initiative. "International agreements place a real, positive obligation on nation states to secure electoral rights for all citizens," stated Karen Fogg, Secretary-General of International IDEA.

An International IDEA press release states: "In many new democracies, election observers cite problems with infrastructure, in particular inadequate physical access to polling stations, as a key factor limiting disabled people's ability to participate in elections." It adds that Canada and Sweden "are leading the way in ensuring that polling stations are made fully accessible to people with disabilities."

The Bill of Electoral Rights for People with Disabilities will serve as a practical advocacy tool for disability organizations and others working at the national and international levels to improve access to the electoral process for people with disabilities. The declaration includes the right to secret voting, full physical accessibility of polling stations and full and equal electoral rights for people with mental disabilities. It also guarantees that citizens with a physical, sensory, intellectual or psychiatric disability have the right and opportunity:

• to have access on general terms of equality to the conduct of public affairs, directly or through freely chosen representatives
• to participate on general terms of equality in the conduct of elections
• to register for, and to vote in genuine and periodic elections, referendums and plebiscites determined by universal and equal suffrage
• to vote by secret ballot
• to stand for election, to be elected and to exercise a mandate once elected

The September conference also approved Standards of Electoral Access for Citizens with Disabilities that provide further explanation of the bill (see www.electionaccess.org/rs/ Discussion_Paper.htm).

Over the years, Canada's electoral process has undergone many changes to make it as accessible as possible to all electors. A very important improvement is the special ballot, which allows Canadians to vote by mail or in person at the office of their returning officer. Elections Canada has also modified buildings and offices used during federal elections to ensure that all revisal offices, polling stations and other premises have level access.

Additional services include mobile polling stations, and information in alternative formats, such as large print, Braille, audio-cassette and diskette.

British Columbia has new Chief Electoral Officer

Harry Neufeld was sworn in as British Columbia's new Chief Electoral Officer on November 7, 2002. A special committee established by the province's Legislative Assembly unanimously recommended his appointment.

Mr. Neufeld has 20 years of experience in electoral management, including positions with Elections BC, Elections Canada and the United Nations. He has also written articles on electoral management published by the International Institute for Democracy and Electoral Assistance (IDEA), the International Foundation for Election Systems and the United Nations Electoral Assistance Division. He is responsible for the administration of the province's Election Act, Referendum Act and Recall and Initiative Act.

Robert Patterson left the provincial Chief Electoral Officer's position on June 6, 2002, when his term expired. He had been involved for 30 years with administering the democratic process in British Columbia and had held the position of Chief Electoral Officer since 1990.

Consultations on Electoral System Reform

Law Commission of Canada conducts consultation

The Law Commission of Canada has been conducting public consultations about possible reform of Canada's electoral system, and intends to table its recommendations in Parliament. The Law Commission is an independent federal law reform agency that advises Parliament on how to improve and modernize Canada's laws.

To stimulate public discussion and debate, the Commission released a discussion paper, Renewing Democracy: Debating Electoral Reform in Canada. Nathalie Des Rosiers, President of the Commission, stated that there is a growing perception in Canada that our democratic institutions may no longer reflect the way in which Canadians engage and participate in political life. "Our current voting system seems unable to reflect the diversity of Canadian society and the variety of perspectives that characterize our country," added Des Rosiers when the discussion paper was released. "It is also problematic because a party can win a majority of the seats in Parliament or legislatures with only a minority of the vote."

Since the release of Renewing Democracy in October 2002, the Law Commission has held public consultations on the current voting system and its alternatives in Toronto, Ottawa, Montréal, Vancouver, Charlottetown and London, Ontario. Other consultations are being planned for other parts of the country. The Commission's electoral reform project is part of its strategic work on "governance relationships," which reflects the view that there is more to addressing concerns about democratic processes and institutions than seeking a way to change how Canadians vote.

More information about the Law Commission's electoral reform initiative and the discussion paper are available at www.lcc.gc.ca.

Prince Edward Island

The government of Prince Edward Island has initiated an independent examination of Prince Edward Island's electoral system. Its November 14, 2002, Speech from the Throne pledged to appoint a commission on electoral reform. On January 21, 2003, Premier Pat Binns announced that the Honourable Norman H. Carruthers, retired Chief Justice of the Supreme Court of Prince Edward Island, had accepted an appointment to head the Commission. "I have asked the Commissioner to engage Islanders on the important issue of electoral reform so that the Election Act, associated legislation and the manner in which our Legislative Assembly is selected continues to be relevant and effective," stated the Premier. An interim report is expected to be submitted in fall 2003, and a final report is to be completed in 2004.

Last April, Merrill H. Wigginton, the province's Chief Electoral Officer, submitted a report on proportional representation to the Speaker of the Legislative Assembly (see the October 2002 issue of Electoral Insight). He recommended that "any binding decision for one system over another system should be left to a provincial referendum, preceded by an impartial campaign of public education about the issues involved in the choice."

British Columbia

The British Columbia government announced in the Speech from the Throne on February 11, 2003, that a motion would be introduced in the legislature to initiate the process of establishing a citizens' assembly on electoral reform. As a preparatory step, on September 20, 2002, the government appointed Gordon Gibson, a former leader of the B.C. Liberal Party, to develop recommendations on how the assembly should function and be structured. The citizens' assembly will assess various models for electing the MLAs, including preferential ballots, proportional representation and the province's current electoral system.

Mr. Gibson has submitted a paper titled Designing the Citizen's Assembly, which states: "In British Columbia we employ the traditional 'first past the post' (FPTP) system, which from time to time has yielded quite unusual results. We have seen situations where the party with the largest percentage of votes did not form government, or where government holds a disproportionate number of seats compared to the vote it received." He also notes that the need for any reforms is not yet clear because "many feel that the current system has served us reasonably well since the founding of British Columbia and there is no need for change." Mr. Gibson's paper is available at www.ag.gov.bc.ca/ legislation/citizensassembly.

If the citizens' assembly recommends a change to the electoral system, that option will be presented in a referendum question at the next provincial election scheduled for May 17, 2005.

Quebec

On June 20, 2002, the Premier of Quebec, Mr. Bernard Landry, and the Minister responsible for the Reform of Democratic Institutions, Mr. Jean-Pierre Charbonneau, published a discussion paper titled Citizen Empowerment. The paper was designed to provide a basis for reflection by addressing 10 themes related to democratic institutions, ranging from modifying the current electoral system to the possible adoption of elements of a presidential system.

On September 5, 2002, Mr. Claude Béland was appointed to chair the Steering Committee of the Estates General on the Reform of Democratic Institutions. The Committee held consultations from October 15 to November 27, 2002. Almost 225 briefs were presented.

The Estates General was held on February 22 and 23, 2003, with almost 1 000 people participating.

The participants discussed 10 issues relating to the themes in the discussion paper.

Some of the notable results of the Estates General were:

• 66 percent were in favour of the current first-past-the-post system incorporating elements of proportionality to reduce any distortions
• 53 percent supported changes to the current political system inspired by the rules of the traditional parliamentary system, while 47 percent favour changes inspired by the rules of the traditional presidential system
• 82 percent wanted elections to be held on set dates
• 58 percent were against lowering the voting age to 16
• 80 percent were in favour of a popular initiative process that would allow referendums on certain major issues
• 74 percent were in favour of incentives to assist the access of women to political institutions
• 65 percent were in favour of incentives to promote ethnocultural community members' access to political institutions
• 74 percent were against having a second legislative chamber with an equal number of representatives from each region

The Steering Committee submitted its report to the government in early March 2003. It can be viewed at www.pouvoircitoyen.com/en/estates/welcome.html.

Before the April 14 provincial election was called, another initiative was being conducted by the National Assembly's Committee on Institutions. Its objectives were to assess the current voting method and propose improvements to it. The Committee published a discussion paper in October 2002 titled The Reform of the Voting System in Quebec, which explores the various existing electoral systems and proposes avenues for reform of the voting method in the province.

Note: 

The opinions expressed are those of the authors; they do not necessarily reflect those of the Chief Electoral Officer of Canada.