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Submission to the Royal Commission on Electoral Reform and Party Financing

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The right to vote

The right to vote is guaranteed in section 3 of the Charter of Rights and Freedoms, which provides:

Every citizen of Canada has the right to vote in an election of members of the house of Commons or of a legislative assembly and be qualified for membership therein.

The right, however, is limited both by our consitutional framework and by various statutory provisions.

Constitutional limitations on the right to vote

The B.C. Civil Liberties Association has taken a leading and active role in promoting and protecting the principle that every citizen’s vote should be equally valued and effective. Our constitutional framework itself denies that to us in federal elections in some measure. Despite the guarantee of the right to vote in the Charter, seats are allocated among provinces for election to the House of Commons based on a formula distorted by the Senate floor rule in the Constitution Act, 1982 and lately by the grandfather rule set in the Representation Act, 1985. These provisions accord smaller provinces and provinces with declining populations, with no growth or slow growth populations with greater representation in the House of Commons than they deserve.

It is our position that these anomalies in our constitutional law should be remedied. The Senate floor rule and the grandfather rules should be abolished. Representation by population should be the watchword in our elections to the House of Commons.

There are many reasons to make this change. It is beyond the scope of this submission to enumerate them all. It is fundamental, of course, that respect for the equality of voters is essential to the functioning of democratic rule. Divergences from that are divergences from the democratic principle. Arguments from history or tradition are not persuasive. Similarly, arguments that geographically larger constituencies are “harder to service” are not persuasive in a day and age when communications have become so enhanced as to provide instant access to locations far and wide. Arguments regarding logistical difficulties can be met by providing better resources and services to elected representatives than by distorting the electoral map and the democratic process.

Similarly, arguments favouring enhanced representation for rural areas, for regional, cultural, linguistic and other groups do not persuade us. They amount to a concession to inequality that our Association finds repugnant. If there is a place at all for such representation, it is in the Senate, rather than in the popularly elected House of Commons.

We were disappointed in the retrograde step taken by the government in 1985 in amendments to the Electoral Boundaries Readjustment Act. In those amendments, the former rule allowing electoral districts to be set within a range of plus or minus 25% of the electoral quotient for the province concerned was relaxed. Now electoral commissions can go beyond that 25% divergence from the electoral quotient if “extraordinary” circumstances exist. The reason for the amendment was that electoral commissions since the 1960s had been gradually lessening the spread between the largest and smallest constituencies in terms of population.

We disagree with that backward move. We would prefer that the plus or minus 25% rule be made stricter. The goal should be to have electoral districts be set as close as possible to the electoral quotient for the province.

Further, the calculations should not be based solely upon the last decennial census figures. It has taken four to six years each decade to accomplish a redistribution; usually elections follow a few years after that. It is almost the end of the decade before a redistribution based upon the census taken at the outset of the decade takes effect. That is intolerable in the modern age. Surely, speedier procedures for setting new electoral districts can be fashioned than those which currently prevail.

In Australia, the legislation on redistribution provides that redistribution commissions are permitted to set electoral districts plus or minus 10% from the electoral quotient for the state concerned. Divergences are not made so as to accommodate enhanced representation for rural, ethnic, geographical or other interests. They are made largely to the primary goal of redistribution commissions: to ensure that, based upon population movement and growth trends, the new electoral districts are set to ensure that they are as close as possible to complete equality in population halfway through the seven year term of the effectiveness of each redistribution. This is a salutary goal. It takes the time element into consideration in redistribution. We could do well to emulate the example set.

Statutory limitations on the right to vote

A close study of the Canada Elections Act reveals that there are numerous statutory limitations on the right to vote. The first limitation is in section 14, under which only Canadian citizens who are 18 years or older are qualified electors. Any limitation on a Charter right must meet the test of section one; that is, it must be a reasonable limit, prescribed by law which can be demonstrably justified in a free and democratic society. We do not question the requirements of age and citizenship imposed by section 14. Other limitations on the right to vote are imposed by the act, however, do appear to be unjustified violations of the right to vote.

These fall into two broad categories: direct disqualifications and administrative disenfranchisement.

Direct disqualifications

Under section 14(4) of the Act, a number of individuals and classes of individuals are disqualified from voting. These include:

  1. inmates in prison
  2. those disqualified for corrupt or illegal practice
  3. federally appointed judges.

The arguments for the disqualifications of inmates and persons who are disqualified for their character seem to be straightforward: it is that such persons have disqualified themselves by reason of their offences against society, or by their attempts to distort the electoral process. A further administrative problem with respect to inmates involves deciding what constituencies they might be entitled to vote in.

These traditional denials of the franchise are the last vestiges of pre-democratic franchise. The continuing denial of a vote to these categories of individuals constitutes a denial of full citizenship. The law, in effect, says that not only are you to be punished for your crimes by the loss of liberty, but you are also to be stripped of your citizenship. We believe that this is wrong: fundamental democratic rights must not be so easily abrogated.

We also think that such a position cannot make any contribution to the positive rehabilitation of prisoners. We recognize that there may be bureaucratic and political difficulties in determining where prisoners should vote, but such administrative difficulties have been overcome for other groups of citizens and should not be allowed to justify a continuing denial of democratic citizenship rights.

Section 14(4)(g) provides that those found guilty of corrupt or illegal practices will not be allowed to stand as candidates for election for various periods of time after being so found. Though these offences are particular serious because they strike at the very heart of the democratic process, there are two good reasons why this provision should be struck.

First, like the limitations discussed above, this one denies a fundamental democratic political right. The right to be qualified as a member of the House of Commons is so important that it is explicitly mentioned in section 3 of the Charter of Rights and Freedoms. The law should not attempt to turn some Canadians, for whatever reasons, into second class citizens.

Second, this provision also interferes with the democratic rights of all citizens. Our system of representation is based on the principle that people have the right to choose their own representative. While on hopes they will not often choose those guilty of such offences, surely it is the voters’ right to decide who should represent them. Parliament must be wary of doing anything that interferes with this basic relationship.

In sum, we strongly recommend that these limitations on the rights and duties of democratic citizenship be removed from our electoral law so that Canadians can enjoy political equality.

Section 14(4)(d) also disqualifies certain judges from voting. Superior court judges are disenfranchised, while provincial court judges (who are provincially appointed) and citizenship judges are free to vote in federal elections. The disqualification of judges is based largely on the principle of the independence of the judiciary from the executive and legislative branches of government. In our view the independence of the judiciary would in no way be threatened by allowing judges to vote. The fact that only certain classes of judges are prevented voting in federal elections undermines any symbolic justification for the disqualification and that judges in the United States and Great Britain are able to vote makes it difficult to argue that denying superior court judges the right to vote is justified under section 1.

Administrative disenfranchisement

Every Canadian citizen who is 18 years or older is a qualified elector unless explicitly disqualified under section 14(4). There are numerous other classes of individuals who, although they are qualified electors under section 14, are prevented from exercising their right to vote for various reasons. Two groups about whom we are particularly concerned are those who cannot vote because they do not have an ordinary residence in a polling division at the time of enumeration or election and those who have no residence at al.

Canadian citizens abroad

Under section 16 of the Act, qualified electors are entitled to have their names on the list of electors for the polling division in which they are ordinarily resident on the enumeration date and to vote at the polling station in that division. This virtually denies the right to vote to Canadians who are studying, travelling or living abroad.

Special voting rules allow some citizens who are abroad—members of the armed forces and members of the public service and their dependents—to be enumerated and to vote while they are out of the country. In our view, provision must be made for all qualified electors residing outside Canada to exercise their right to vote.

In its 1986 White Paper on Election Law Reform, the federal government recommended that the procedure used for armed forces personnel and public servants, which is outlined in the special voting rules in the Act, continue to be follows, and that all other Canadians abroad be able to vote at a Canadian diplomatic mission or military base or vote by mail. We endorse these recommendations.

Homeless voters

According to the National Anti-Poverty Organization, more than 100,000 people in Canada are without shelter annually. There are no special provisions in the Act for enumeration or revision with respect to qualified electors who have no ordinary residence. Under section 17(14) a hostel or refuge is deemed to be the ordinary residence of someone living there for at least ten days prior to the enumeration date. This provision does nothing, however, for the tens of thousands of homeless Canadians who do not have access to shelters, who do not choose to use shelters or who are not in a shelter for the required ten day period preceding enumeration. These people, who are qualified electors under the Act, cannot be enumerated because they do not have a civic address.

The revision process places significant obstacles in the paths of those without shelter who attempt to get on the list of electors at this stage. Without having received any noticed of the existence of the revising officer or any information about the revision process, such an individual is required to apply in person to the revising officer. In order to have his or her name added to the list, he or she must provide “answers to the satisfaction of the revising officer all such relevant questions as the revising officer deems necessary” (Schedule A to section 18, rule 49). The final decision as to whether an applicant can be registered rests with the local revising officer. According to the Chief Electoral Officer, the revising officer “determines the criteria and guidelines for accepting a request for registration” (letter from the CEO to the BCCLA, 10 March 1989. Under this regime, revising officers have an unwarranted amount of discretion to determine who will be allowed to exercise the right to vote. Such a process may also result in inconsistent and unpredictable criteria being applied across the country.

Those without shelter, like all other citizens, are guaranteed the right to vote under section 3 of the Charter. Can the limitations placed on that right by the Act be justified under section 1 of the Charter? Three primary arguments are advanced to justify such limitations.

Those without shelter, like all other citizens, are guaranteed the right to vote under section 3 of the Charter. Can the limitations placed on that right by the Act be justified under section 1 of the Charter? Three primary arguments are advanced to justify such limitations.

One of the arguments is that homeless electors lack both adequate knowledge and commitment to the community to be allowed to vote. This argument suffers two major flaws. First, it is based on an uninformed stereotype of homeless people as less knowledgeable and as having less commitment to their community than other qualified electors. Second, it suggests an intelligence or sophistication test in judging who ought to be allowed to vote. Not only are many homeless Canadians rooted in their communities, particularly in those communities where they have access to needed services, but the use of knowledge of intelligence criteria in the determination of who is worthy of franchise goes against our democratic traditions. If we decide to rely on such a test, there is no evidence to suggest that citizens with ordinary residences are more likely to fail than those without. Moreover, denying those without shelter the most fundamental method of community input adds to their sense of powerlessness over decisions which may have a severe impact on their lives.

Another argument emphasizes the extent to which our electoral system is tied to residency and raises the prospect of the mass migration of homeless voters into a particular riding. That this concern is raised as a justification for barring the homeless from voting, given that any citizen can fraudulently swear to the revising officer as to his or her residency, again reflects a discriminatory attitute about homeless people: that because they are poor, they are more likely to be dishonest. We reject that assumption and point out that the entire voter registration system is based, to some extent, on faith. There are no grounds for excluding citizens without shelter from our assumptions about voter integrity.

Finally, it is suggested that the complications of registering people without an ordinary residence are too great. In our view, no amount of administrative inconvenience can justify the denial of the right to vote.

These arguments also fail to meet the test under section 1 of the Charter established by the Supreme Court of Canada in R v. Oakes. The limitations placed on the voting rights of the homeless are not rationally connected to their objective, which is to prevent fraud in the compilation of the voters’ list. In addition, the rules for enumeration and revision are not the least restrictive measures possible to achieve those objectives.

The enumeration of homeless electors could be achieved through the use of enumerators especially trained (like those conducting the national census of the homeless) and the broadening of the definition of “ordinary residence”. Alternatively, special rules could be developed for homeless electors which would, for example, allow them to use a community centre as their address for renumeration—as was done in the 1988 Metropolitan Toronto election. This method has the added advantage of establishing a location where politicians will have access to those voters. The Canada Elections Act must be amended to ensure that those without shelter are not stripped of their most basic right of citizenship.

Restrictions on electoral advertising

Sections 13.7 and 61.2 of the Act will limit the time in which candidates, parties and local associations may advertise before an election period to a period known as the “broadcasting period”. Electoral advertising is, at other times, effectively prohibited. This provision is one piece in the larger complex systems of electoral finance regulation nad control that has been established in recent years. This section, and those tied to it in the Act, raise fundamental questions about whether the law should regulate free speech at election time. We submit that there are five compelling reasons why this limitation should be removed from our system.

First, any limitation on political advertising constitutes a restriction on the fundamental freedoms of “thought, belief, opinion and expression, including freedom of the press and other media of communication”, as protected by section 2 of the Charter.

Second, any limitation on political advertising and communication is doubly odious when it seeks to restrict debate, in any way, at election time. If there is any period in a democracy when debate should be encourage and stimulated, surely it is between the announcement of an election and voting day. Yet this provision does exactly the reverse! It detracts from the electoral process by limiting free speech. It should be eliminated.

Third, the Court of Queen’s Bench in Alberta, in a 1984 case brought by the National Citizens Coalition, has ruled that similar provisions to regulate the advertising of groups other than political parties were unconstitutional. Thus, political parties are now at a comparative disadvantage at election time in terms of their ability to communicate with the electorate. This is highly undesirable in our system of responsible party government.

Fourth, the experience in the United States suggest tat limits on party advertising may encourage many individuals to promote their ideas outside of the parties. This would weaken the parties by reducing Canadians’ involvement in them and by encouraging more single issue group activity. The negative consequences of such a development might be greater in a parliamentary system like ours than they have been in the U.S., a consideration reinforcing point three above.

Fifth, in an important sense the rationale that underlies the current system is now outmoded. The limitations were initially intended to constrain and equalize national electoral spending among comparatively poor political parties. But changes in the law and in fundraising have made our parties rich. Official party reports reveal thati n the 1984 federal election, the Liberal party spent over $18 million, the Progressive Conservative Party over $27 million, and the New Democratic Party over $12 million. Yet the law limited each to just over $6 million in election expenditures. In other words, far more is now being regularly spent by the parties outside the electoral period than in it. Complex and cumbersome regulations to limit election spending during a part of the campaign that no longer serve teh purpose they were designed for. The original justification limiting free speech in the name of equalizing competition no longer exists.

We also object to limitations on those seeking endorsement as a candidate of a political party for the reasons enumerated above. The impact would be to erect another set of limitations to free speech and communication near election time.

Deregistration

Section 13(8)(b)(ii) provides that the Chief Electoral Officer shall deregister any political party that fails to nominate at least fifty candidates in a general election. This effectively sets fifty as the number of candidates that define the minimum size for a political party. It may be that some minimum is required, but fifty is excessive and unfair.

The provision may well force a minor or new party to nominate more candidates than it wants to or can reasonably expect to support. This poses an extra burden on such groups and encourages “nuisance” candidacies. On the other hand, if the group chooses to nominate less than fifty candidates it escapes the regulations other parties are subject to under the Act. A fair electoral law should do none of these things.

Fifty is far higher than the number of members (12) required by the rules of the House of Commons for its recognition of a group as a party. This can only lead Canadians to conclude that the system discriminates: one rule for the politicians, and another, which sets a more demanding test, for citizens who seek election.

This provision discriminates in another way. Voters in Ontario or Quebec could organize a provincially-based group as a party if they choose. Voters in Atlantic Canada or British Columbia, regions in which there are less than fifty constituences, could not. Thus, the law inherently limits the democratic organizational options of some Canadians more than others. That would seem to be an unacceptable infringement of their basic rights.

We suggest that the number fixed by Parliament for the recognition of a party be applied to parties seeking election as well as to those already elected.

Opinion polling

Bill C-79 required that in any report about “every commissioned opinion poll in relation to a candidate or a registered party”, any print or broadcast media must disclose six distinct, enumerated pieces of information about such a poll. In effect, the law is telling the communications media what it must report if it wishes to discuss poll results.

Such a provision is not found in the current Act and, in our view, should not be included in any future elections legislation. Such a provision is in direct violation of the “freedom of the press and other media of communication” guaranteed by the Charter. These grounds alone should be sufficient to cause this provision to be deleted. Indeed, even before the Charter became part of the Constitution Act, similar laws passed by the Aberhart Social Credit government in Alberta directing the press as to what it need say, were struck down as offensive to our democratic system.

The 1986 White Paper discussed the issue of publishing poll results and concluded that it should not be prohibited. For reasons not explained, it went on to recommend disclosure of the sort found in Bill C-79. The rationale for this kind of regulation is not clear. It must either be to inhibit media reporting of opinion polls, or because the government believes that Canadians need special protection from polling information. But there is no particular reason to believe most voters will make much of the proposed disclosures.

Opinion poll results are only one statistical measure that Canadians are regularly fed by the media. The national news tells us the Dow-Jones and T.S.E. index on a daily (sometimes hourly) basis; we are fed seasonably adjusted unemployment rates and cost of living indices every month, and all are the stuff of political debate. Yet no similar provisions regulating detailed disclosure of how such figures are produced are suggested, though all of them are inherently less intellible to the average Canadian. Clearly those who support the regulation of the reporting of opinion polls feel that the results of such polls are more dangerous to the health of Canadian democracy than other statistics and that Canadians must be especially protected from them. This feeling is no basis for further restriction of freedom of the press.

How would legislation regulating the reporting of opinion polls define the term “opinion poll”? Would such a poll differ from one about beliefs and opinions? If so (and many academics would argue that there are significant distinctions) there could be real difficulty in enforcing such legislation. How does a commissioned opinion poll differ from one that is not commissioned? If the law does not propose to regulate the latter, will there not be a large hole in it? In Bill C-79, polls about registered parties were to be regulated, but apparently those concerning non-registered parties were not. Why? These questions suggested that unless their net is spread very wide, such provisions could be easily bypassed.

The provision in Bill C-79 appeared to require that every report of a poll question be accompanied by disclosure information. This would mean that a story that provided an account of a series of polls—perhaps over several years—would have to disclose the information for a long set of questions. The net effect would almost certainly be to discourage those sorts of stories. But such stories constitute the most useful and valuable form of opinion poll reporting. The law should not work to discourage responsible journalism.

Obviously, it would be difficult to apply such a law to media that have their origins outside the country. This will put Canadian communications media at comparative disadvantage in terms of reporting Canadian politics and public affairs. That is absurd.

Finally, as the White Paper correctly noted, polls will continue to be conducted and their results known to politicians, journalists and those they talk to. There is no reason to give such individuals privileged access to information about the views of ordinary Canadians while limiting voters’ access. Such a double standard is undesireable in a democracy.

Enforcing the law

Another aspect of Bill C-79 which we would not like to see rejeuvenated is the Canada Elections Enforcement Commission. The Commission propsed in Bill C-79 was to be numerically dominated by the nominees of the political parties represented in the House of Commons. The Commission was to be charged with the responsibility of enforcing the Act. It was given the power to hire its own investigators, and only the Commission would be able to prosecute an offence against the Act. Under Bill C-79, most of the work of the Commission, its staff and agents was to be done in secret.

A series of considerations led us to the conclusion that thsi is a fundamentally flawed structure. Putting the enforcement of the Act in the hands of the parties is like putting the fox in charge of the hen house. The temptation to manipulate the system to short-term advantage will not easily be resisted and that can only bring the system into public disrepute. Public opinion about politicians and parliament is not so high as this reality can be ignored.

We make this argument, not as cynics, but because the historical record is so clear on this point. In an earlier period of history, when contested elections were far more common, elected party politicians played fairly fast and loose with the rules as it suited their partisan interests. Similarly, the decennial redrawing of electoral boundaries proved a temptation to elected members that showed the Commons “at its worst”. Eventually parliament realized that the only solution to the problem was to turn the process of to a set of non-partisan commissions. The proposal in Bill C-79 sought to reverse this trend by putting partisans back in charge of the electoral system. It is a bad idea.

The proposed Commission was to have the power to hire its own investigating force with the right to obtain and use search warrants. The bill had investigators reporting to the Commission, who had the sole right to prosecute. All this amounted to a special election police, independent of the regular administration of justice, under the direction of active politicians. We do not use such extraordinary measures to enforce the law in this country and should not start now. Such a mechanism would have none of the check and balances built into professional policing regime and it violates our conception of appropriate and acceptable practice.