Summary

There is an urgent need for the repeal of the Canada Elections Act and for democratic renewal of the entire electoral process. The Canada Elections Act violates the constitutionally-protected right of Canadians to elect and be elected and infringes on the rights to freedom of conscience, freedom of association and expression and the right of citizens to equality before and under the law and of equal benefit and equal protection of law. Even within the confines of the existing "first-past-the-post" party rule system, this law is inadequate to ensure a level playing field amongst political parties. This Act is in contempt of modern democracy -- an instrument of marginalization of citizens.

A new Canada Elections Act should be enacted as enabling legislation for the exercise of the Fundamental Freedoms set out in Part I, Section 2 and the Equality Rights as applied to Section 3 of the Charter of Rights and Freedoms.

In the measures adopted to secure the implementation of those rights, the Legislature must ensure that provisions enacted do not violate other human and civil rights, and that individual and collective rights are harmonized with the general interests of society. A broad consultation with citizens should take place to draft this new Act to ensure maximum citizen participation in working out its provisions. The electoral process must empower citizens, not political parties which do not represent them, to govern the polity.

The current Act gives privileges and benefits to political parties rather than to citizens. It discriminates in favour of privileged and powerful parties as against small parties. The Act negates the right to elect and be elected by electing parties rather than citizens and excluding citizens from selecting those who will be candidates.

A key element of the plan to ensure the right of the citizens to elect and be elected is that the selection of candidates should be made by citizens directly, not by parties, even though candidates selected by political parties could also present themselves for selection by citizens. An elected Electoral Commission in each constituency and at the national level should control and regulate all financing of the electoral process with no privileges or state-financed benefits whatsoever going to political parties as such.

Such provisions would not only "level the playing field", one of the stated objectives of the electoral law, but would ensure that those who are elected are accountable to those who elect them and that the electoral process empowers the people to elect and govern themselves.

The electoral law should spell out where the power resides -- with the citizens -- who as a collective are sovereign. The Act should ensure appropriate mechanisms so that political parties as such do not come to power.

The scope of the brief is that after a general discussion of how the Canadian electoral law is in contempt of modern democracy, specific provisions of the existing act will be considered, and CPC(M-L) will put forward its proposal for a new electoral law. The three appendices are an integral part of the brief.

Introduction

The Communist Party of Canada (Marxist-Leninist), registered for electoral purposes as the Marxist-Leninist Party of Canada, welcomes the opportunity offered by the Standing Committee on Procedure and House Affairs to present its views on the Canada Elections Act and its suggestions for legislative changes to the Act. We think that, as Peter Adams, Chair of the Standing Committee writes in his letter inviting our input, this is indeed "an appropriate and useful time to undertake a review of the Canadian electoral system and of the Act itself."

As you may know, Hardial Bains, the National Leader of our Party until his untimely death on August 24, 1997, submitted a brief on behalf of our Party to the Royal Commission on Electoral Reform and Party Financing in 1990. We are attaching a copy of this brief as Appendix A to our present submission.

That brief put forward the fundamental changes which CPC(M-L) considers necessary to empower the people. CPC(M-L) never received any response from the Royal Commission nor was it invited again to clarify any of its positions. None of its recommendations showed up in the Report of the Commission, to the extent that the Report did not even recognize that CPC(M-L) presented opinions in any significant way.

Over seven years have passed since the Royal Commission held its hearings. This period has been marked by dramatic changes, including the defeat of the Establishment in the referendum on the Charlottetown Accord on October 26, 1992. Literally hundreds of thousands of people have expressed their discontent with the political process and the politicians, but no change in the policy of the government has taken place on any major question of concern to the electorate. On the contrary, following the defeat of the Charlottetown Accord, the Mulroney government declared that it was "business as usual." The subsequent Liberal governments of Jean Chrétien have carried on in the same way.

One of the items being dealt with in the old way is legislation on electoral reform. On November 26, 1992, the Special Parliamentary Committee on Electoral Reform, comprised of the Progressive Conservatives, Liberals and New Democrats in the House of Commons, met in camera to discuss a Draft Interim Report on changes to the electoral process. What was most significant about this is that, once again, the political parties in the Parliament enacted legislation irrespective of the expressed views of the electorate.

Our Party has done further substantive work on this issue since it presented its brief in 1990. Summing up the experience since then, our Party has further developed its proposals to better reflect the wishes of the electorate. Some of these changes have been proposed also by other people across the country, but the main thing is that they are directed towards empowering the electorate at this point in time. They comprise both the theory behind the proposals and what needs to be done immediately, in a practical sense.

We have most recently intervened in Figueroa v. the Attorney General of Canada with a Factum which also highlights some of the serious flaws in the Canada Elections Act. Even though a verdict has not been brought down in this case, it is our opinion that the arguments presented by all concerned are also important for the Standing Committee to consider. This case has been referred to by Justice Molloy as the most important Charter challenge to the Canada Elections Act to date.

Considerations

Timeliness of the Review

In Peter Adams' letter requesting the input of the registered political parties to your review it is not elaborated as to why this is "an appropriate and useful time to undertake a review of the Canadian electoral system and of the Canada Elections Act," other than mentioning that the June 2, 1997 federal election is "still fresh in our minds." We think that it is important that the Standing Committee take up the reference about the timeliness of the review in its profundity and actually review the entire electoral system in Canada in the context of the needs of democracy at this time, as the situation warrants.

As is the case with all countries in the world, Canada today is living at a defining moment as it prepares to enter the 21st century. It behoves us all to sum up the experience of the 20th century and learn from it so as to ensure we march into the 21st century on a sound footing.

One of the characteristics of this defining moment is that the world is no longer divided on a bi-polar basis. This has given rise to an objective need to overcome the ideological blindness imposed by prejudices of the previous period. This provides everyone, no matter which side of the ideological divide they belonged to, an opportunity to look at things afresh. For decades, stands were taken on the basis of prejudices imposed by the notion of "two camps" -- the one said to be communist and, from the official Canadian perspective thereby anti-democratic, and the other said to be democratic. What precisely these "camps" and the institutions under them stood for was largely a matter of self-serving propaganda which the world can well do without.

Nonetheless, following the end of the bi-polar division of the world, the notion of democracy sanctioned by the Organization of Security and Cooperation in Europe (OSCE) which includes Canada was imposed on the entire world as the paradigm of a democratic system. A free market economy, respect for human rights, a multi-party system and "free and fair elections" are the hallmarks of this democracy. While this may be politically expedient, it is not consistent with the requirements of a modern representative democracy.

In our opinion, it is most important to appreciate at this time that unless warranted conclusions are drawn from this experience, both of what existed in the decades prior to the collapse of the former Soviet Union and of today, letting the chips fall where they may, this inquiry into the electoral system and Elections Act will fall short of performing a valuable service to the polity and the present and future generations of Canadians. Any attempt to impose partisan views and prejudices onto the inquiry will stymie its conclusions. Any unwarranted recommendations will be either ineffective or further fuel the crisis of credibility and legitimacy in which the unrepresentative democracy is presently mired.

This crisis of legitimacy in which the present system of unrepresentative democracy finds itself and its lack of credibility are objective. They exist because of the objective need to bring the representative democracy on a par with the requirements of the times. Unless and until the matter is looked at in its profundity, no amount of change to the electoral process will restore confidence in the system.

A democracy is generally understood to be a system of majority rule in which sovereignty is vested in the people. The expression "the will of the majority" illustrates this understanding. Only by studying whether the present electoral process and electoral law do indeed express the will of the majority, will we be able to draw warranted conclusions.

In the brief submitted by Hardial Bains in 1990, he pointed out amongst other things:

Democracy is a feature of society which is divided into classes and, as is generally known, conflicting interests constitute the very essence of this political form, and characterize any democracy.

The aim of democracy cannot be reduced to the form which is used to bring it into being. The point we wish to underscore here is that discussion on the electoral form, without discussing the aim which that form seeks to bring about, is a futile exercise. Such a discussion will not fulfil the expectations of the many who believe that changes and reforms in the Elections Act will ensure their participation in the electoral process. Neither will such a discussion ensure their participation in the process of having their say in the decision-making on the matters which concern them.

Today, while almost all citizens have the right to vote, they are disenfranchised in a number of ways. Unless the Royal Commission addresses itself to this issue, then the words of Mr. Chairman in his introductory remarks, that 'We intend to develop a blueprint for the electoral law that will effectively meet the needs of Canadians well into the next century, reinforce their confidence in our democratic process and their members of parliament and reflect their values and democratic institutions,' will remain on paper only. This is because in order to inspire confidence, people must participate directly themselves. Generally speaking, it can be said that people will defend only those decisions which they participated in making. If they continue to remain on the outside of the decision-making process, then they will continue to be disillusioned by the decision-making process and lack confidence in the system of government, as is the case today.

Our Party has repeatedly stressed the need for a democratically-determined decision-making process so as to solve the problem of how the citizens participate in government. One of the human rights in the political sphere is the right to participate in governing one's society. This is because human beings, by virtue of their being, live in societies and they make a claim upon society to satisfy their rights to housing, a living, an education, health care and welfare, etc. Their demand is for society to satisfy these wants and recognize them not as policy objectives but as rights which stem from the right to be. The right which comes into existence the moment a person is born thereby entitles them to the right to participate in governing the affairs of the society upon which they depend and have claims. The birth itself puts a demand on the society which can never be extinguished.

It is in this sense that the Elections Act is understood to be enabling legislation which guarantees all Canadians equal access to elect and be elected to government institutions for purposes of having their say on how society is governed. The liberal principles which imbue the system of representative democracy practiced in Canada were conceived in the 19th century and no doubt served the polity well at that time but no longer do so. The 19th century was a time when voting was considered a privilege not a right, or put another way, a right based on property considerations and when subjects were routinely discriminated against in terms of both qualification for holding office and eligibility to vote. This is well-documented in the book recently published by Elections Canada, A History of the Vote in Canada.

The Dominion Elections Act enacted in 1874 was repealed and replaced in 1900, 1920, 1934 and 1938 and was revised and renamed the Canada Elections Act in 1952. The Act was repealed and replaced in 1960 and again in 1969-70. The system of political party registration was incorporated in the 1970 Act and by 1974 its basic features including party financing for privileged political parties were put in place.

The numerous revisions have not replaced the 19th century considerations on which the Canada Elections Act is based with more modern considerations, such as those contained in the Canadian Charter of Rights and Freedoms, which became part of Canada's Constitution in 1982. The Canada Elections Act does not ensure that all citizens enjoy the benefits of these civil and political liberties, and is in contempt of various sections of the Charter, particularly those dealing with fundamental freedoms, democratic rights, and equality.

Even though the franchise today is universal and not based on property requirements and citizens of voting age are eligible for office, the Canada Elections Act continues to enshrine privileges to some "major" political parties and to discriminate against others, the so-called minor political parties.

Already by the turn of the century political theory had determined the elitist nature of these principles; far from providing a fair playing field, it is a system which brings elites to power. Far from resolving such issues as how to enhance the participation of minorities in the affairs of the body politic, it even gave rise to what is known as elite accommodation whereby spokespersons of minority interests, whether cultural, liguistic, religious, gender- or ability-based, etc., are accommodated in the ranks of the political parties so that they deliver the vote of their sector which is then said to have representation. Clearly this is a system which further marginalizes the citizenry, further ghettoizes minorities and contributes to horse-trading and pork-barrel politics. It compromises the freedom of conscience of one and all to have to adopt the political beliefs of whichever party has the best chances to get elected in order to "get representation."

In spite of the recognition of the fundamentally elitist and therefore unrepresentative character of the representative democracy, there has been a refusal to tackle this problem and the same elites have used their position of privilege and power to enact reforms and changes which have avoided dealing with the substantive issue. Under the guise of making elections more free and fair, issues of accountability as concerns the electoral lists, counting of votes, etc. have been perfected but, other than this, the issues which make the democracy unrepresentative have not been addressed.

Our Party does not consider this to be a partisan issue but an issue that concerns the entire polity. The aim of our submission is therefore to bring this matter forward in its profundity as we think it behooves the Standing Committee itself to do. We repeat once again that unless the review is carried out by looking at the system in an all-sided, non-partisan manner, any changes and recommendations will only deepen the crisis of credibility and legitimacy in which the unrepresentative democracy is mired.

Whether the Standing Committee takes up this issue remains to be seen, but the issue presents itself objectively, independently of anyone's will. It is not the figment of the imagination of this or that individual or political party, let alone ours. We hope that the Standing Committee will rise above partisan prejudices in considering all the views presented to the Committee for its consideration.

Free and Fair Elections

In its deliberations, the Standing Committee must take into account that in Canada successive governments have used the institution of "free and fair elections" to claim that our political system and process are already the best in the world. Attention has been paid to make changes to ensure that the Canadian electoral system conforms to this notion of "free and fair elections" and it has been hoped that the credibility of the system can be maintained on this basis. But this has not taken place. Far from it, there is a growing disparity between those -- a minority -- who are satisfied with the system and defend it and those -- the majority -- who are not represented by the system and are increasingly marginalized politically. The marginalization of the majority is not a matter of taste, prejudice or belief. It is an objective reality.

Since the last reforms to the Act were put in place, a growing trend of Rule by Decree has been accompanied by an increased reliance on propaganda about "mandates" in order to justify unpopular government action, along with increased use of the police and courts to suppress opposing political views that have no means of expressing themselves within the current process. The criminalization of differing political opinion is a serious development which concerns the entire polity, no matter what its views on the differing opinion.

It should not be necessary to recall for the Standing Committee that only some 2-3 percent of the Canadian citizenry of voting age belong to political parties in this country. It is a sad day when instead of addressing the underlying causes of the present state of affairs, parties in power, both in government and in opposition, use their positions to run roughshod over the majority. Even a cursory review of the considerations at different times when changes have been enacted to the law in the past reveals their partisan and self-serving nature.

In this regard, our Party's summation of the experience of the 20th century, both in Canada and on the world scale, shows that the institution of "free and fair elections" to which Canada's electoral law and system conform, does not enable Canadians to enjoy their Charter right which recognizes their right to elect and be elected. This is because, besides bringing political parties to power, it does not demand an even playing field in which all citizens have an equal opportunity to elect and be elected. It does not insist on political equality in which there is equal access to political resources, especially media coverage and financing. It does not ensure that the citizenry is able to select and vote for their peers to represent them or that they are enabled to participate in governance. None of these are considered the aims of the prevailing system of representative democracy which is why it is in contempt of a modern conception of democracy.

According to the definition inherent in the notion of "free and fair elections", an electoral process must be followed in which various political parties are allowed the possibility to participate in elections so long as they meet certain eligibility requirements. It is one of the anomalies of the development of Canada's electoral laws that the more the rights of every member of the polity to elect and to be elected were recognized, the more the electoral law has strengthened the role of political parties as "primary political organizations", rather than enabling all citizens to exercise their rights. The electoral law has thus become legislation enabling the political parties, not all members of the polity, to participate in governance.

Free and fair elections are said to be guaranteed when voting boxes and polling booths cannot be tampered with, when electoral lists are seen to be in order, representative and up-to-date, when the ruling party is not seen to use its positions of privilege and power to gain advantage for itself, when facilities for a secret ballot are secure and there is no overt stuffing of ballot boxes, when intimidation of voters or forcing of voters to vote in a particular way does not take place, and so on. Election commissioners and police forces are also to be seen as remaining impeccably neutral as the guardians of the electoral law. In this way, "free and fair elections" are supposed to be the hallmark of democracy upon which the credibility of the democracy depends.

Because of such considerations, in our opinion the members of the Standing Committee must ask themselves what is the basis of their review. Throughout the 20th century varied measures have been taken to make sure the electoral system in Canada measures up to these notions of free and fair elections, to the extent that the elections in Canada are truly considered a model for those countries where these requirements are yet to be attained. But we think that it would not be useful for the Standing Committee to be satisfied with what exists in Canada today on the basis of invalid comparisons with either what exists in other countries or with its own imperfect past. Many times, comparisons are made with corrupt electoral practices in other countries to justify what we have in Canada. It is known that in various countries outright violations of civil rights take place with impunity. It is legitimate to oppose such things, but this must not be confused with attempts to justify our own shortcomings on the basis of the view that we are lucky to enjoy such "free and fair elections" as exist in Canada. Similarly the difficulties in imposing the institution of "free and fair elections" in former Soviet republics and countries of eastern Europe and the chaos and aarchy which prevail in not a few of those countries must also not divert us into ignoring the needs of the democracy in Canada. If any comparison is to be drawn, let the chaos and anarchy which exist in those countries remind us that the same will take place here if attempts to criminalize differing political views persist on the part of parties which form the government.

If the Standing Committee is to conduct a review which is useful to the polity at this time, it must come to terms with the fact that the system in Canada has to be studied on the basis of its own merits and demerits, keeping in mind the advanced experience humankind has achieved in this domain. The problems which have surfaced and continue to surface must be studied in context. This context requires that the substantive issue of democracy, its essence, must be brought out.

Purpose of the Act

After seriously considering the problem, CPC(M-L) has concluded that the Act goes beyond its purported intent. The Act claims to be An Act Respecting the Franchise of Electors and the Election of Members to the House of Commons. In fact, by defining the grounds which determine what constitutes an officially-registered political party in the context of the polity, not merely a specific general election, it creates categories of legitimacy which go way beyond elections and infringe on the rights of Canadians to freedom of conscience, expression and association. Not only does the Act go beyond its mandate but even within its mandate it violates democratic liberties. At the very least, its contents should be a clear statement that the Act applies only to general elections. Within this, it is duty-bound to guarantee a fair playing field not only for all political parties which seek to field candidates in the election, but for all Canadians who seek representation.

Violations of the Charter of Rights and Freedoms

The Charter of Rights and Freedoms states that Canada is a "free and democratic society." It further enshrines the right of Canadians to elect and be elected. In other words, what makes Canada "free and democratic" is precisely those matters of the electoral democracy that the Standing Committee has the opportunity to address on behalf of Canadians.

One of the problems which the Standing Committee will have to consider is that when the Royal Commission on Electoral Reform and Party Financing failed to deal with the substantive issues, it introduced no mechanism to ensure that decision-making power is shared between the elected and the electors but dealt merely with the right of Canadians to vote. By basing itself on old suppositions, it sought to further entrench them and brought foth no modern definitions. It did this by limiting its mandate to matters of electoral procedures within the context of current definitions.

Its mandate fell short of dealing with the political process itself so as to determine whether or not it enables Canadians to exercise their democratic right to elect and be elected, as recognized in the Canadian Charter of Rights and Freedoms. The Commission declared:

...the Commission is of the view that fundamental changes to Canada's system of direct election by simple majority on a single ballot does not fall within the ambit of its mandate.

In our view, it is important to recognize that the flaw with the Canadian system of representative democracy is not primarily a matter of how the votes are counted and the fairness of the voting procedures as such. It lies with the privileged position given to certain political parties on the basis of an unequal playing field. This has strengthened an absolutist tendency which has become more and more pronounced in government action. Instead of finding the ways and means for Canadians to participate in governance, changes to the electoral law have concentrated even more powers and privileges in the hands of political parties which form part of the Establishment forces. The claims of governments and Establishment political parties about inclusion notwithstanding, the domain of government and political affairs is being made more exclusive, not more inclusive. Arbitrariness and privilege are being strengthened, going further and further away from the democratic ideal of political equality amongst the members of the polity.

Violations of Human and Civil Rights

Within the limited framework of "first-past-the-post" party rule, the current Canada Elections Act violates the human right to conscience and the civil rights to freedom of association, expression and equality. At a fundamental level the Canada Elections Act violates the right of conscience because it forces citizens to follow an electoral process which ensures their own marginalization, because they can neither elect nor be elected as a right. Parties nominate candidates, who then owe their position and electoral chances to a party machine severing them from the citizens whom they claim to represent. It is parties not citizens that are represented in Parliament.

The Canada Elections Act violates freedom of association becase it provides for the seizure of the assets of a registered political party which does not run fifty candidates in a given election. (S 28 & 31) First the Act violates freedom of association by turning political parties into mere electoral machines, creatures of the statutory scheme whose reason for existence is the pursuit of power and privilege. Having created this conception of the political party and 'political affiliation' by 'all-Party agreement' the privileged parties in the House of Commons think this gives them the right to impose this definition of a party on everyone.

Freedom of expression is violated in a similar way. Instead of the electoral process being one in which citizens participate in the act of self-government, empowered and responsible to themselves and one another, the electoral process is one which divides the polity on the basis of the electoral promises of the parties which consider them a voting bank. Name-calling and backroom dealing replace public debate on the substantive issues of concern to Canadians.

The Canada Elections Act also violates the principle of equality. The electoral law favours some parties over others. Not only is financing provided to those parties from the state treasury but the broadcasting provisions give privileges to parties which are already well known, especially the party in power. There is nothing in the electoral law to guarantee the equality of citizens either in terms of their access to information about candidates and parties, or equality in the benefits provided by the Act to equal access to power and the mechanisms of empowerment.

Political Affiliation

Freedom of association is generally understood to mean that no one can be penalized for forming any association they choose so long as the aims of the association are not to break the law. The Canada Elections Act violates this fundamental freedom as well as freedom of conscience insofar as it seeks to regulate what kind of political beliefs a person should have as concerns a democracy and what constitutes a legitimate political party. It legitimizes those political parties which are organized purely as electoral machines and whose main aim is to come to power.

The narrow definition of a political party as simply an electoral machine is not accepted by all political parties. Among broader aims would be to politicize the members of the polity, to assist citizens to participate in governing the society, to encourage citizens to become the decision-makers and exercise control over their own affairs and the affairs of the polity, for example. Insofar as the Canada Elections Act imposes its narrow definition of a political party on such political parties, it is infringing not only on the freedom of association, but also on freedom of conscience.

A party such as CPC(M-L) sees its participation in elections as just one aspect of its all-sided political work to organize the working class and other sections of the society to affirm their sovereignty, and it does not violate any law in doing so.

CPC(M-L) makes its decision to participate or not participate in elections according to its assessment of the political situation in Canada at any given time. It may be that in certain conditions a party chooses to participate in an election not by fielding candidates but by calling on the electors to support other candidates, or by calling on them to stand for election as independents, or to boycott the election, or any other series of alternatives available to the members of a polity. The fact that a political party decides to participate in an election in a manner other than itself fielding candidates should not be grounds for penalizing it through de-registration and the forced liquidation and surrender of its assets.

Violations of Freedom of Association

Section 31 of the Canada Elections Act violates the right of freedom of association by allowing the state to force a political party, which has applied for registration or has status as a registered political party, to liquidate its assets and remit them, after paying its creditors, to the Chief Electoral Officer for transfer to the Receiver General, if the party does not field fifty candidates in a General Election. In other words, if a party does not field fifty candidates in a particular electoral contest, the citizens who have joined this party no longer have the right to freely associate in this party, because the party has been forced to liquidate itself.

The presumed logic of this section of the Act is that the assets of the party were collected from the public for the purposes of an election campaign, and if the party is not going to participate in the election campaign by fielding at least fifty candidates, then the assets should be returned to the public coffers. Even the principle of fairness is not applied to this requirement, such as liquidating only those assets which have been acquired as a result of benefits enjoyed at the expense of the public treasury.

This provision takes place in circumstances in which only the government of the day calls the election. This is an outrageous violation of freedom of association which has no conceivable justification. It was introduced in the last days of the Conservative government in 1993 and the House of Commons debates record no debate whatsoever on the specific provisions. [s.31(10-14)] A number of parties were deleted from the Registry after the 1993 election, and five parties were deleted after the 1997 election. One of those parties, the Communist Party of Canada, has challenged these and other provisions of the Act as violating Freedom of Expression section 2(b), Freedom of Association section 2(d), The Right to Elect and Be Elected section 3 and the equality provisions of the Charter of Rights and Freedoms. These provisions violate the rights of Freedom of Association, Freedom of Expression and Equality Sections 2,3 and 15 of the Charter of Rights and Freedoms and cannot be 'saved' by section 1. There is no proportionality whatsoever between a supposed government objective in seizing the assets of a de-registered party and the damage this provision does to freedom of association, freedom of expression and equality of rights.

The fact that this provision was introduced into the electoral law in the dying days of the Conservative government with o debate whatsoever in the House of Commons illustrates the low level of public discourse it promoted concerning fundamental rights. Whatever the outcome of Figueroa v The Attorney General of Canada it is the view of CPC(M-L) that the Standing Committee should also address this fundamental question.

Another example of how the Canada Elections Act infringes upon the right of freedom of association is the failure of the Act to provide for the registration of political parties between General Elections. If a political party is not registered at the time of a General Election, it cannot be given official recognition to participate in a by-election held before the next General Election. In other words, citizens wishing to form an officially recognized political party are not allowed to do so until the next General Election and can thereby not participate in a by-election under their Party name.

The freedom of association is violated also through the Canada Election Act's infringement upon the internal organization and functioning of political parties which vest sovereignty in their membership. The requirement that the national leader of a party approve the nomination of all candidates running for that party (Section 81.1.h) gives power to the national leader, such as parachuting in candidates in opposition to the wishes of the party members in the constituency, that may be at variance with the principles of the political party itself. This is another example of the violation of freedom of conscience.

Violations of Freedom of Expression

Freedom of expression is generally understood to mean that no one can be punished for expressing criticism of officials, the government, the regime, the socio-economic order or any ideology. Based on one's financial ability to publish his or her views, a citizen can freely do so. The Elections Act, however, privileges some to have more access to media than others and is therefore in contempt of providing a fair playing field during an election. Furthermore, in the event that an officially-registered party decides to express its criticism by boycotting an election and is subsequently de-registered and its assets confiscated, it and the citizens belonging to it are in fact being punished for the expression of their views.

The Canada Elections Act violates the freedom of expression also by restricting the ability of citizens to give expression to their political beliefs through the unnecessary obstacles it places for the participation of citizens in the electoral process. Such obstacles include the $1000 deposit (Section 81.1.j) and the fifty candidate rule (Section 28.2).

The fact that there is no provision for registration between elections as mentioned above also means that a political party which has been de-registered or has not yet registered has its political expression arbitrarily interfered with during any by-election which occurs prior to the next General Election. This is yet another example of how the Canada Elections Act violates freedom of expression.

The Right to Elect and Be Elected

The Canadian Charter of Rights and Freedoms, in Part I, Section 3, under the subhead Democratic Rights, states:

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 to be qualified for membership therein.

Equality Rights

The Canadian Charter of Rights and Freedoms, in Part I, Section 15, subsection 1, under the subhead Equality Rights, states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Canada Elections Act also violates the principle of equality by using public funds to finance some but not everybody, and some more than others, thus violating the equality rights in the Canadian Charter of Rights and Freedoms. As a result of amendments made in 1996, Section 241 of the Act stipulates that only political parties who receive a number of votes equal to either 2% of the number of valid votes cast  at  an election, or 5% of the number of valid vote cast in the electoral districts in which the registered party endorsed a candidate, are eligible to a reimbursement of 22.5% of their reported expenses.

Within the context of the existing legislative scheme the variation in treatment of small and large parties by the Act is discriminatory. In particular, parties receive reimbursement for election expenses in accordance with a formula which favours the privileged parties and allocates broadcast time on a discriminatory basis as well. If the legislative scheme is such that there are registered political parties, the law should be completely neutral in its treatment of registered political parties whether within or outside of the House of Commons.

The creation of a multi-tiered system of party recognition is itself a violation of the principle of equality.

Section 24(2)

As mentioned in the introduction of this brief, the name of our Party is Communist Party of Canada (Marxist-Leninist). Our Party appears in the Party registry and on the ballot at elections as the Marxist-Leninist Party of Canada because of a decision of the Chief Electoral Officer that our name 'so nearly resembles' the name of the Communist Party of Canada, "as to likely to be confused with the registered party or the other political party." Because of this decision of the Chief Electoral Officer some 25 years ago, which was reiterated by him after the Communist Party was de-registered and then reapplied for registration under Section 24(2), our Party has had to put up with this restriction on the freedom of expression of its members for a quarter of a century.

This seems to be an appropriate time and place to raise the question as to whose mind is 'likely to be confused' by this situation. The Communist Party of Canada and the Communist Party of Canada (Marxist-Leninist) are two different political organizations each with their own programs, their own perspectives and their own history. We believe the legislature should reconsider the language of Section 24(2) to provide direction to the Chief Electoral Officer that our organization should be able to apply for a variation of registration under Section 25 of the Act to use its own name.

The Broadcast Provisions

Sections 303 to 322.1 of the Canada Elections Act deal with political broadcasting and the Establishment of the Broadcast Arbitrator. The Communist Party of Canada (Marxist-Leninist) has had extensive experience with these provisions and the operation of these sections.

Equality rights are violated also in terms of the allocation of broadcast time. Section 310 of the Canada Elections Act sets forth the guidelines for consideration in the allocation of broadcast time to registered political parties during an election period. These guidelines favour those parties with seats in the House of Commons after the previous General Election, giving more rights to those with more seats and to those who had the greater percentage of popular vote in the previous General Election. The Liberal Party has been the governing party in Canada for 65 out of the last 100 years. It is inconceivable that anyone looking into the matter objectively could consider that this party is an unknown quantity which requires "equitable measures" to communicate its "message" to the voters. It is only by looking at matters from the narrow confines of "all-party agreements" that the matter could be consider as "fair" apportionment between the "contenders".

Such considerations are also contrary to the notion of a level playing field for free and fair elections. How can the playing field be called level for all registered political parties when those who won the previous General Election and already have the advantages stacked in their favour are given more advantages? Moreover, why should the outcome of the previous General Election have significance for the current General Election? For example, the electorate is well-acquainted with the program and policies of the current government through its years in office since the General Election previous to the last one. How can it be considered fair to the other parties when it is allocated the greatest portion of broadcast time? More to the point, how can it be considered fair to the electorate who may not have had the opportunity to become acquainted with the programs and policies advocated by the other political parties, particularly those who failed to elect a member to the House of Commons during the previous General Election? Would it not be more fair to the electorate if the small parties who did not elect members in the previous General Election were allocated the majority of broadcast time?

During the annual meeting of registered political parties with the Broadcasting Arbitrator held on April 17, 1996, the representatives of parties not seated in the House of Commons demanded that broadcast time be allocated equally among all the political parties. They pointed out amongst other things that it is unacceptable that Canada sends representatives to various countries to oversee their elections and to assist in ensuring that they are fair and in conformity with democratic principles, while in Canada itself the most flagrant violation of the notion of "free and fair elections" takes place.

The Report on the 35th General Election notes, "A number of the smaller parties raised more fundamental questions regarding the fairness of the statutory approach to allocation under the Canada Elections Act."  Since 1992 the Broadcast arbitrator has ruled that "a pure application of the statutory factors is unfair to the smaller parties" and in both the 1993 and 1997 reports recommended that the minimum time be increased to "between 10 and 20 minutes per party" and that this minimum be extended to newly registered parties as well. Once that minimum was reached, the Broadcast Arbitrator considered that the remaining time could be divided "utilizing the statutory factors, i.e. seats won, votes obtained, and candidates fielded in the last election". (Report on the 36th General Election Appendix 3 Report of the Broadcasting Arbitrator p. 93.)

While the Broadcasting Arbitrator himself has realized the "unfairness" of "a pure application of the statutory factors" and it is to his credit that he applied the principle of equality between the parties with regard to one-third of the available broadcast time, the other two-thirds were allocated according to the "statutory factors". As a result the Liberal Party got 118 minutes of paid broadcast time compared to between 12 and 18 minutes to the registered parties not represented in the House of Commons and six minutes to one newly-registered party. (Report on the 36th General Election p. 88.) These paid broadcast allocations were then used in allocating the "free time broadcasts" which for most of the parties not represented in the House of Commons ended up being seven minutes on the Canada-wide television networks, four minutes on the English and French CBC and two minutes each on three Quebec radio and television networks. The paid broadcast allocations are actually not a limiting factor at all for the parties concerned since the Reform Party v. Attorney General of Canada decision struck down the penalty provisions concerning allocation of paid broadcast time only as the criteria for the allocation of free time.

Our Party argues that if there is to be a statutory allocation of broadcast time to political parties, that allocation should at minimum be an equal one. If anything the parties without representation in the House of Commons are at an extreme disadvantage in communicating their perspective to the public because of a virtual media blackout concerning them.

Party Financing

CPC(M-L) questions why there should be any public financing of political parties as such. It is one thing to permit political parties to provide tax receipts for contributions made by their supporters. However, present provisions for reimbursement for candidate's expenses in an electoral system whose outcome is prejudiced by the unfair distribution of wealth perpetuates an unfair playing field, influence-peddling and contributes to the credibility and legitimacy crisis.

The real anti-democratic nature of the provisions on party financing come into clear relief when they are considered, amongst other things, in the context of the provision that the National President must endorse the nomination of party candidates. These two provisions taken together constitute a legislative scheme which is bound to engender and legitimize pork-barrel politics. In the recent election the Liberal Party utilized Section 81(1)(h) to parachute candidates into several constituencies over the objection of the local party organizations. Far from being an equity measure to guarantee fair representation of women, it is a mechanism which increases the marginalization of the polity in which the fortunes and future of would-be MPs are tied to "political affiliation," a defined term in the Act.

We also question the magic number of 12 MPs as having any legitimate significance in terms of the allocation of resources, with this pseudo-category of "recognized political party". It is not democratic to allocate privileges or resources on the basis of the party machine. Funds currently allocated to MPs to operate party constituency offices should be turned over to local, elected Electoral Commissions to whom the Member of Parliament is responsible on a day-to-day basis. The entire electoral process should be organized in the open with no privileges whatever going to political parties. This measure alone would raise the stature of the politician and political institutions from what it is today.

The Canadian Encyclopedia sums up the question of financial support concerning the Liberal Party in this way:

The Liberals traditionally raised election campaign money from big businessmen and to a lesser extent, small entrepreneurs. Since the introduction of the Election Expenses Act (1974), reliance on business funding has dramatically declined in favour of tax-deductible member donations and direct subsidies from the public purse. (p. 1003)

It is clear that the electoral process puts political parties in power. But it also dictates the functioning of such political parties. Once having gotten "first-past-the-post", elected Members of Parliament are manipulated and controlled by the "party machines" which derive their sustenance in large measure from the financial and other provisions of the electoral law which privilege political parties, and within that some parties more than others.

The whole party financing scheme serves the interests of wealth and privilege and consolidates the stranglehold of the Party on the independence of thought and action of the Member of Parliament. Whereas, as a Party member, an individual is free to agree to such a condition of membership in a political party in which he or she freely chooses to associate, this cannot be a condition for membership in the Parliament of Canada.