Electoral Reform and Party Financing
Bill C-9, An Act to Amend the Canada Elections Act and the Electoral Boundaries Readjustment Act: Brief to the Senate Committee on Legal and Constitutional Affairs
Anna Di Carlo, May 31, 2001

Madame Chairperson and Members of the Committee,

The Marxist-Leninist Party of Canada is of the opinion that changes to the Canada Elections Act contained in Bill C-9 do not address the fundamental problems inherent in the Act which has become increasingly anachronistic. Changes to try to make it coherent will not succeed. Changes must address the fact that the Act does not enable Canadians to select and elect their peers in a meaningful manner; it does not provide a level playing field for political parties and it does not guarantee an informed vote. Individuals and representatives of non-party political collectives are disqualified from participating in the electoral process as a result of the provisions which make elections dependent on the financial resources of participants and of the provisions which outlaw meaningful third party spending. While the media are not considered third parties or special interests, in reality they are and are seen to be. The credibility in the conception of freedom of the press and an informed vote is seriously undermined when some special interests can actively push the interests of party government, while other special interests cannot participate in a meaningful way.

Bill C-9 was passed by the Liberals in response to the Ontario Court of Appeal ruling in the Figueroa case regarding the identification of candidates belonging to eligible political parties that fail to meet the 50 candidate threshold for achieving registered status. This Court case has not come to an end, in that the Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal ruling.

It has been argued out by the courts, as well as the Liberal government that the "underlying principles" of the Canadian Constitution have primacy over the rights of Canadians to elect and to be elected. This underlying principle is the existing party-system of government elected through a process which allegedly gives rise to a "clear and coherent political will" in the form of a party laying claim to a first-past-the-post majority. Thus, the Charter right to equality, the right to elect and to be elected that belongs to all citizens is being litigated by the government not on the basis of examining what these political rights entail in a modern polity, but on the basis of subordinating the exercise of these rights to the preservation of existing political institutions. The time has come to abandon the aim of reforming the electoral law from the standpoint of how to preserve and enhance the unrepresentative system of party government based on 19th century liberal conceptions of good government. So long as there is a refusal to engage Canadians in discussing what would constitute good government today, then further entrenching self-serving notions in repeated reforms to the Elections Act will not help to overcome the political crisis Canadian institutions are facing. Far from it, the lack of credibility in the House of Commons, political parties and politicians is increasing. The lack of confidence in elections has never been more profound.

The Liberal government's response to the Ontario Court ruling -- Bill C-9 -- would seem to satisfy the requirements of the Courts. However, by taking a purely legalistic approach, the essence of the matter is suppressed and the status quo is preserved. How will the changes in Bill C-9 enable citizens to participate in making the decisions that affect their lives? How is it an enabling mechanism? How will it help to reverse the low voter turn-out seen in the November 2000 election?

Aside from the low voter turn-out, the demand and aspiration of Canadians for renewal of the electoral and political process, and the failure of the government to respond to this demand, is seen in the fact that Canadians are increasingly turning to the courts to seek redress. This escapes them because the decisions of the courts can be overturned by the Parliament on the basis of the underlying principles of the Constitution which inform the electoral law, or they rule on the basis of the same underlying principles. Unless these underlying principles are addressed, these reforms will continue to exacerbate the crisis of legitimacy of the electoral system. The present court cases include a Charter Challenge related to the method of counting votes (the first-past-the-post winner take all system) and another Charter Challenge to the provisions of the Canada Elections Act which allocate broadcasting time to political parties on an unequal basis. These challenges reflect a growing consciousness and concern on the part of Canadians that the political process is failing them and recognition that the Government of Canada is refusing to respond to the needs of the times to modernize the political process so that Canadians can participate in governance in a meaningful way, that is to say, in setting and adopting policy. Choosing between preset policies which they do not perceive represent their interests is not democratic. It does not lead to a system of majority rule but to a system of minority rule. 

We would like to address Bill C-9 within the context of recent developments because what we see is that the electoral law, as it is amended on the basis of Charter Challenges, is become increasingly incongruous.

The Right to an Informed Vote

It has been stated by both the Ontario Court of Appeal in its ruling in the Figueroa case and by Minister Boudria, in presenting the Liberal government's arguments for Bill C-9, that the party identifier on the ballot is a matter which relates to the right of the electors to an informed vote. The individual elector, it is said, is deprived of crucial information if the candidate is a member of a political party but the ballot does not reveal this fact.

While the Liberals have conceded to entitling ballot identification to political parties with twelve candidates, they argue that these parties should not be entitled to any means to inform the electorate about their political platforms, such as the free broadcasting time, to which registered political parties are entitled, albeit on an unequal basis. In fact, the electoral law is based on the notion that an "informed electorate" is somehow created by giving the lion's share of political broadcasting time to the Party in Power. So long as this problem is not addressed, then entitling ballot identification to political parties with twelve candidates also begs the question of an informed vote. It does not behoove the Parliament of Canada to use an argument to justify a position when that argument itself is already without justification.

The argument that Bill C-9  is redressing a violation of the right to an informed vote only serves to highlight the problems which emerge from an electoral law which recognizes political parties as the only entities entitled to govern, gives privileges to the Party in Power to the detriment of even the other parties in the House of Commons,  and  in turn rules all others out of the equation by virtue of declaring them "unlikely to form a government." The issue of why someone is entitled to declare such things and how they can be above the polity is fundamental. It is undemocratic in theory and in practice. What the Parliament of Canada is being called on to do by the times is to eliminate such anachronisms. 

The ruling of  the Ontario Court of Appeal, in touching upon the issue of the right to an informed vote, inadvertently reveals the fact that elections are conducted in a situation where the electorate may not even have at his or her disposal information related to the political persuasion of the candidates. This should serve as the occasion for a serious review of this issue of how to create an informed electorate. In this regard, the problem is that election campaigning by political parties, and the discriminatory regime in place to facilitate this campaigning, is equated with informing the electors.

The Right to Ballot Identification and Candidate Nomination

There has been a lot of discussion as to what numerical threshold should be established for a candidate to be entitled to have his or her political party membership identified on the ballot. Is twelve warranted? Should it be more? Should it be less? Here, we think the problem goes back to the issue of the privileges accorded to political parties over the electors and non-party organizations.

In its review of the Canada Elections Act in 1992, the Lortie Commission sought to address the problem of the non-participation of Canadians in the electoral process. It concluded that more and more Canadians were joining non-party organizations. By a flight of fancy the Parliament of Canada concluded that if third-party spending is seriously curbed, Canadians will indeed join political parties. Real life shows that this has not happened. Nonetheless, the Parliament of Canada has insisted on making the party system of government work by imposing its wishes in law with disastrous consequences. Less people are joining political parties. Less voters are turning out. The discourse during elections is dominated by parties which have been accorded dominant positions and by the media. When will responsible people in Parliament emerge to recognize this? Will the Senate take this opportunity to do so?

The opinion of the Marxist-Leninist Party of Canada is that any political formation of Canadian citizens who wish to field a candidate in an election and want that candidate to be identified by the name of their organization should be entitled to do so.  For example, if an organization such as the Council of Canadians would like to field a candidate for purposes of electing a member of parliament who would fight against the Free Trade Agreement of the Americas in the House of Commons, we see no reason why it should not be allowed to do so. If the workers in a factory, or in a sector of the economy, were to decide to nominate a candidate from amongst their peers, we see no reason why the candidate cannot be identified as such.  The electoral law, however, would classify the Council of Canadians, or the group of workers, as  "third parties."  They would not be entitled to field a candidate representing them as such, nor would they be entitled to wage a serious electoral campaign, because they face significant financial restrictions. While it is being argued that reducing the number from 50 to 12 to qualify for party identification on the ballot serves the cause of an "informed electorate," the question which we pose is how this right is served by restricting those who can be identified on the ballot to members of political parties, registered or not? So long as the Electoral Act entitles political parties to nominate candidates and some have more privileges than others, this problem will persist.

Broadcasting Provisions of the Electoral Law

Bill C-9 has extended the time during which political parties are enabled to purchase, or receive for free, broadcasting time during an election campaign. The 36-day election campaign period serves only those political parties that work as well-honed election machines, especially the Party in Power which has the added advantage of knowing when the election will be called. The extension of the time for political broadcasts by 48 hours will only serve to benefit the political parties that wage their campaigns through paid advertising. At the same time, it means that the electors will be bombarded right to the last minute by the sort of political mudslinging that we witnessed during the November 2000 election. How will extending the broadcast time solve the problem of mudslinging? We think that within the situation, the electors are better served by having a few days reprieve in the days before the actual election.

Speaking generally, the broadcasting provisions are another area of the electoral law which have made it extremely incongruous. Through amendments resulting from challenges under the Charter of Rights and Freedoms,  the broadcasting allocations for paid time no longer serve as a limit to how much time a political party can purchase. Thus, the Broadcasting Time provisions, which were originally conceived with the view of preventing any one political party from dominating the airwaves by virtue of their wealth has made the original conception null and void. Even though political parties are accorded "limits" on the basis of the number of seats they have in the House of Commons and the number of candidates they fielded in the previous election, any registered political party can buy more than its limit so long as it has the finances to do so. This problem is not addressed by Bill C-9.

"Third Party" Restrictions and the Untenable Legal Definition of "Third Parties" 

The limits placed on "third parties" in the name of ensuring "fairness" during the elections is another serious incongruity of the Canada Elections Act. As has been pointed out by Mr. Kingsley, Bill C-9 has created a situation where eligible political parties fielding 12 candidates in an election will now fall into the camp of "third parties" when it comes to their election campaign. This is clearly a serious violation of political rights. By what logic can a political party be silenced by the state?  Bill C-9 sanctions the already existing  restrictions on the freedom of a political party to voice its opinions during an election if it chooses not to field candidates or chooses to field less than 50. Any non-registered political party is for all intents and purposes suppressed from waging a campaign that surpasses the limits imposed on "third parties." This is the case even if the political party takes no stand on the particular parties and candidates contesting an election and only addresses the issues at hand.

We cannot agree with this censorship of political parties. Nor do we agree with the censorship imposed on other organizations, such as the example we have already given of an organization such as the Council of Canadians were it to want to contest an election.

The untenable logic for restrictions on "third parties" is further illustrated by the fact that the monopoly-controlled newspapers are not recognized as "third parties." In the name of "freedom of the press," the monopoly-controlled newspapers are free to do and say whatever they wish during an election. They are free to completely suppress information about certain political parties and free to pick and choose who and what merits coverage. The editorials by some newspapers which openly call for the election of a certain political party do not even fall into the category of  "election expenses," either for the newspapers, which are in fact special interest groups par excellence, even though there is a refusal to acknowledge that they fall into this category, or for the political party which receives the free publicity.

The Further Entrenchment of a Privileged Political Elite

The currently standing legal ruling which has led to Bill C-9 establishing yet one more differentiation amongst political parties, in our opinion, sanctions, and forms part of, a gross violation of fundamental political rights vis-a-vis who is and is not recognized as holding rights when it comes to elections. We will now have "eligible political parties" (parties that have applied for registration but have not fielded 50 candidates in the previous election); eligible political parties that are recognized as "political parties" (parties that have fielded 12 candidates in an election) and are treated as political parties when it comes to identifiers on the ballot but will be treated as "third parties" on all other matters; and "registered political parties" that are treated differently according to their standing in the House of Commons, their previous electoral participation, and their degree of wealth.

In the name of "fairness" and in the name of "regulating electoral competition," and even in the name of upholding the "right to an informed vote," what we see is the entrenchment of a state-controlled regime of a political elite accorded special privileges.
Conclusion

The Canada Elections Act with or without Bill C-9 being passed violates the political rights of Canadians to elect and to be elected. Far from coming to grips with what is needed to renew the electoral and political process so that it corresponds to the needs of a modern democracy, Bill C-9 will only accentuate the serious flaws in the Canadian electoral regime. 

A decade will soon have passed since the Lortie Commission was established with the aim of addressing the problems of the Canadian electoral system. A decade ago the Marxist-Leninist Party of Canada pointed out that the underlying premises of the Elections Act had to be modernized. 

It must now be acknowledged that the legislative amendments to the electoral law that have been enacted since that time, including Bill C-2 which was presented as a major overhaul of the system,  have done nothing to restore the credibility of government and the reputation of political parties and politicians. All the problems raised by Canadians during the hearings of the Lortie Commission and, before that, during the hearings of the Spicer Commission remain unaddressed. Far from increasing the participation of Canadians, there is greater disaffection.

The November 2000 General Election was itself conducted under a revised electoral law which was presented by the Liberals as the culmination of a long and protracted study of the electoral process since the time of the Lortie Commission. How then do they explain the lowest ever voter turn-out? They don't even try. The failure to provide the system with a justification merely gives rise to more arrogant declarations that they have a mandate and that this entitles them to do as they wish. The 2000 Election also saw political discourse replaced with hooliganistic political campaigning. The result was the election of a "majority" government with one of the lowest percentage of eligible voters casting a ballot for the "winning" Liberal Party. These facts cannot be made to disappear because the Liberals keep on repeating that they have a "mandate to rule" and keep on pretending that they enjoy the support of "the majority." Current attempts to reform the procedures in the House of Commons will also not meet with success because the starting point of the problem, that is, how the government is elected and who it represents is not addressed.

Today more than ever the underlying principles which inform the Canada Elections Act need to be seriously reviewed. The MLPC thinks that this must be done in a legitimate public forum and lead to the drafting of a new electoral law with the full participation of all the electors, including submitting it to a referendum.  The argument that Bill C-9 is merely addressing the ruling of the Ontario Court of Appeal on the issue of ballot identification for non-registered parties and therefore should be passed ignores the need for fundamental reforms to eliminate the violation of the right to elect and to be elected which belongs to all citizens. We recommend that the Senate send Bill C-9 back to the House of Commons with a recommendation that such a review be conducted, especially in light of the on-going Charter Challenges to the Canada Elections Act.