Electoral Reform and Party Financing
Review of the Canada Elections Act Regarding the Registration of Political Parties: Brief to to the Senate Committee on Legal and Constitutional Affairs
Sandra L. Smith, and Anna Di Carlo, March 13, 2008

Joan Fraser
Chairperson
Standing Senate Committee on Legal and Constitutional Affairs

Chairperson and Members of the Committee,

The Marxist-Leninist Party of Canada (MLPC) welcomes the opportunity to present its opinions on the review of the provisions of the Canada Elections Act regarding the registration of political parties.

1. The Purpose of Reviewing the Party Registration Provisions

The Marxist-Leninist Party of Canada believes that the current review of the party registration regime must start from the standpoint of assessing its relation to the right of all Canadians to elect and to be elected; it must be based on recognition of the principle that if the state is to accord benefits to political parties it must do so on the basis of equality; it must recognize and take into consideration the rights of independent candidates; and the right of the electorate to an informed vote.

The changes to the party registration regime were introduced in haste in the last months of the year-long suspension of the declaration of unconstitutionality by the Supreme Court of the 50-candidate threshold. The haste was accompanied by the promise that the "broader implications" of the Figueroa ruling to the entire Canada Elections Act would be reviewed before the expiry of the sunset clause in 2006. This promise was never delivered. Another two years have lapsed since that time. It is our concern that the approach to the review is not to look at these "broader implications" and is in danger of going in the direction of subjecting political parties that field fewer than 50 candidates and small parties in general, rather than the electoral law itself, to review and scrutiny.

The current political party regime has been in place since June 24, 2004. The amendments that brought it into being were, on face value, prompted by the Supreme Court decision in Figueroa v Canada (Attorney-General) which found the 50-candidate threshold requirement for a political party to become registered to be unconstitutional but suspended the unconstitutionality for one year so as to give Parliament an opportunity to bring the Canada Elections Act into conformity with Section 3 of the Charter of Rights and Freedoms. The legislation was rushed through the process with the government of the day promising that "the broader implications of the Figueroa ruling" would be explored at a later date. To this end, a two-year sunset clause was incorporated into Bill C-3 by the Committee on Procedure and House Affairs. It appears that the sunset clause was also prompted by the desire of some members of the Committee on Procedure and House Affairs at the time to set the threshold at 12 candidates. The two year expiry date approached with no review having been conducted and consequently in May 2006, Bill C-4 extended the legislation indefinitely with a proviso that the appropriate committees of the Senate and Parliament conduct a review within two years. The fact that Parliament has not yet started its review, less than two months prior to the deadline, is indicative of the disregard for the Supreme Court ruling which established important parameters within which the constitutionality of the Canada Elections Act should be assessed.

There are conflicting viewpoints as to the purpose of the review. One view is that the purpose is to assess whether or not the reduction of the 50-candidate threshold to one candidate has resulted in the bogey-man that was raised four years ago about the potential proliferation of fake political parties; and the hordes of "interest groups" that would rush to join the ranks of the political parties of the establishment at the trough of public subsidies. It is this view which seems to be prompting questions from members of the Senate Committee such as "Do we investigate these individuals through a police check, for example, to see that they are good citizens?" referring either to the 250 declared members of applying political parties or to the officers of those parties. It is prompting questions such as "What would happen if the Hell's Angels formed a political party?" Questions are being asked about the funds the small parties are raising for which tax receipts are issued, as though a) the information is not already public; and b) the potential for abuse is to be found in the ledgers of political parties that have small budgets in the range of thousands of dollars, all of it comprised of funds from individuals, while the political parties of the establishment that are floating in millions of dollars, much of it public subsidies, and have been involved in scandals or investigations of electoral spending corruption are on the side of the angels. In other words, what seems to be under review is not the Canada Elections Act in light of the Figueroa ruling, but the legitimacy of the political parties in Canada who field less than 50 candidates. In fact, the occasion of the review is even being used to question the legitimacy of the Bloc Quebecois as a registered political party.

The Marxist-Leninist Party of Canada believes that this is a dangerous partisan approach which is unwarranted and will not serve the Canadian polity. The hooliganism exhibited within this approach should be ruled out of order. Far from the unfettered proliferation of political parties in Canada, the situation is such that all political parties are under increasing pressure from the administrative burdens of the electoral laws, burdens that have been required to keep track of money which mainly goes only to the political parties in the House of Commons. This has given rise to problems such as difficulties in finding volunteers to accept responsibilities that have serious legal repercussions and the development of practices promoting the existence of parties without members.

Of greater concern is the not so subtle undertone of criminalization of political opinion and the apparent disregard for the Charter guaranteed right of Canadians to express their political opinions and to form associations for that purpose. From what source do the political parties in government assume the right to give their ayes or nays to the legitimacy of Canadian political opinion and organization? The Marxist-Leninist Party of Canada believes that the approach demanded by the review is one which is brought forth by the realities of a political process in which Canadians are being increasingly marginalised and depoliticised. It is demanded by a political process which is in danger of losing all credibility as voter-turnout and other indicators of involvement, such as party membership, are reaching historic lows. Canadians are deeply concerned that they are losing more and more ground in terms of being able to exercise any influence whatsoever over the social, economic, political and international affairs of the country through the political process established by the electoral law. This is witnessed by continued participation of Canada in a war that is broadly opposed by the majority of Canadians but is supported by both the party-in-power and the party-in-opposition, creating not just a governing war party, but a war government against the wishes of the Canadian people. There is an urgent need to review not only the party registration provisions, but the entire Canada Elections Act to modernize the electoral process and the laws governing it so that all members of the polity can exercise control over the society on which they depend by exercising their right to elect and to be elected.

2. The Significance of the Supreme Court Decision

Having studied the ruling of the Supreme Court of Canada in Figueroa v Canada (Attorney- General), and having followed the electoral legislation since then, the Marxist-Leninist Party of Canada is of the opinion that the governments that have been in power since June 23, 2003, when the ruling was issued, have been negligent in giving the ruling proper attention. Neither has pre-2003 legislation been reviewed, nor has legislation enacted since then taken the ruling into account. The approach of the political parties in power to the Supreme Court ruling which cast constitutional doubt on the entire party-registration and benefits regime in place since 1970-74 has been marked by a cavalier attitude. This approach seems to have been informed by the promotion of the partisan interests of the political parties that have seats in Parliament who want to enhance their position of power and privilege, rather than the renewal of the democratic process so as to enable Canadians to participate in governance. As a result, Canadians are increasingly turning to the Courts to protect their political rights from continued violation and the electoral and political process is increasingly discredited as a means through which political change can be realized.

The Supreme Court ruling contributed to an important discussion of how individual political rights as enshrined in the Charter are framed within a party-dominated system. It looked at the way that the party-dominated system is supposed to work (with political parties as the primary political organizations) and the inherent limitations this poses to the rights of the electors to fully participate in the political process. It highlights the tensions between the current system and the necessity for a new system in which the party-privileges based on 19th century conceptions of democracy are eliminated and the theory of governance is brought on par with a modern conception of rights and 21st century conditions of universal suffrage.

Facts are revealing that a system based on party-domination and party-privilege is obstructing the development of political rights for all. It cannot evolve to meet the requirements of a modern polity without eliminating this domination and privilege of a political elite. The notion that the Supreme Court ruling should be reduced to its most minimal aspect, that is, the issue of the candidate threshold, and all else should be shoved aside, certainly misses the point of re-evaluating a system which has been built on the very idea that there are certain political parties that should be treated as though they have a natural or superior right to govern, to be heard, and to enjoy privileges over and above all others.

By nature of Charter Challenges, the Figueroa case ruled only on the 50-candidate threshold, tax receipts, candidate surpluses and ballot identification. There were no other provisions of the Canada Elections Act under judiciary review at the Supreme Court level, since the rulings by Justice Malloy at the lower court of Ontario had led to the government removing the vote-requirement threshold on the reimbursement of the $1,000 candidate deposit, and the offending provisions which entitled the government to liquidate a registered political party automatically upon deregistration.

The Ontario Court of Appeal ruled that the 50-candidate threshold was constitutional, arguing that the discriminatory treatment of political parties based on size could be justified by virtue of the fact that the Canadian political system has the aim of electing a majority party government which can give rise to a "clear and coherent political will." In the words of the Supreme Court in its review of the Ontario Court of Appeal decision:

"The Court of Appeal for Ontario concluded that effective representation is ‘the desired end product of the electoral process’ (para 80). In particular, it found that effective representation exists where the electoral process results in the formation of a majority government that has structured choice and aggregated preferences at the national level. On this view, the purpose of s. 3 is engaged only by those political parties that possess the capacity to aggregate interests on a national level and participate in the governance of the country subsequent to an election. A party that does not participate in an election with a view to forming a government, or at least of winning a substantial number of seats in Parliament, is not a party that possesses the capacity to advance the objective of effective representation. Thus, it is not improper to withhold benefits from political parties whose level of participation is so minimal as to be incapable of serving that goal."

The Supreme Court isolated this framework as a fundamental error in the Ontario Court of Appeal's legal interpretation of previous court rulings and emphasized that the legal precedents have "emphasized the right of each citizen to an effective representative in the legislative assembly." The Supreme Court identified "effective representation" not as one that exists by virtue of electing a party to govern with a majority, but as one which stems from "the right of each citizen to play a meaningful role in the political process, rather than the election of a particular form of government."

The Supreme Court ruling thus states:

Support for the proposition that s. 3 should be understood with reference to the right of each citizen to play a meaningful role in the electoral process, rather than the election of a particular form of government, is found in the fact that the rights of s. 3 are participatory in nature. Section 3 does not advert to the composition of Parliament subsequent to an election, but only to the right of each citizen to a certain level of participation in the electoral process. On its very face, then, the central focus of s. 3 is the right of each citizen to participate in the electoral process. This signifies that the right of each citizen to participate in the political life of the country is one that is of fundamental importance in a free and democratic society and suggests that s. 3 should be interpreted in a manner that ensures that this right of participation embraces a content commensurate with the importance of individual participation in the selection of elected representatives in a free and democratic state. Defining the purpose of s. 3 with reference to the right of each citizen to play a meaningful role in the electoral process, rather than the composition of Parliament subsequent to an election, better ensures that the right of participation that s. 3 explicitly projects is not construed too narrowly.

The current political process remains rooted in the notion that party-domination of the system and party-government trumps the rights of individual citizens. This is the fundamental flaw in the system which gives political parties the right to select and nominate candidates (and increasingly is being implemented as the right of the leader of the party to select and nominate candidates), while reducing small party candidates and independent candidates to the status of non-entities.

3. Concerns About State Control of Political Parties and Violation of the Right to Freedom of Association

In its Factum to the Ontario Court (General Division) in the Figueroa case, the Marxist-Leninist Party of Canada raised fundamental concerns regarding the violation of the right to freedom of association embodied in the forced liquidation of registered political parties upon deregistration and the inherent definition of a political party in the Canada Elections Act at the time, that is, the treatment of political parties as organizations whose exclusive function is electoral competition. The Marxist-Leninist Party has concerns on the same subject related to the new provisions in the Canada Elections Act which subject political parties to unwarranted state control in the name of "protecting the public purse" and ipso facto subject them to scrutiny vis á vis the political activities they carry out that are not related to electoral politics. The laws that are in the Canada Elections Act are presented as benign, in that it is suggested that so long as a political party fields one candidate and is a "real party," it will never be criminalized. However, the seeds of police-state governance, state-control and criminalization of political parties are found in certain provisions of the laws. In its Factum to the Ontario Court, the MLPC stated:

The MLPC participates in elections as one aspect of its all-sided political work to organize the working class and other sections of the society to affirm their sovereignty. Its participation or non-participation in elections is conditional on its assessment of the political situation in Canada at any given time and whether or not its participation in the particular election would contribute to the advancement of the cause of the working class. It may be, in certain conditions, that the MLPC 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 which upholds the right of all its members to exercise their right to elect and be elected, and to participate in the political affairs as they deem fit, according to their conscience.

At the time, the MLPC was addressing the provision of the Canada Elections Act which no longer exists which allowed the state to force a political party which had applied for registration or had status as a registered political party to liquidate itself if it failed to field 50 candidates. However, the new party provisions introduced in 2004, in our opinion, still violate the right to freedom of association and the broad independence of political parties to carry out whatever political activities they see fit once they become registered. It will not do to say that this is the price that must be paid for becoming eligible for state funding because this only raises a million questions. If state-funding limits political freedom, what is its value? For example, one of the provisions of the new regime states that it is against the law for a registered political party to solicit or accept contributions that are for an entity not subject to the Canada Elections Act (that is, an entity other than a candidate, a registered constituency association, a political party, a candidate for party leadership, or a third party that has registered with Elections Canada). The logic here is that political contributions, subject to a tax-credit, can only be used for electoral purposes or for activities that the political party directly carries out itself (even if that activity is broadly hated by the electors, such as image-consultants for political party leaders, polling that is used to manipulate public opinion, etc.) But if the members of a registered political party want to raise political contributions to donate to a worthy political cause, such as the anti-war movement, or a non-registered organization fighting for democratic reform, this would be considered illegal, because the only political cause worthy of state-subsidy is electioneering.

In its Factum, the MLPC presented what it considers to be a modern definition of a political party, one that is in keeping with the requirements of a polity in which all citizens regardless of race, gender, financial status or any other considerations (except age) are entitled to the right to elect and to be elected. It stated:

Our point is not that this definition should be enacted in law, nor that all political parties should  embrace this definition. The point is that the privileged status of political parties over and above the individual members of the polity, and their subsidization through public funds, the consequent necessity for their registration so that they can receive such funds, and the consequent just demand that if the state funds political parties it cannot fund some and not others has led to an impossible quagmire. Within this quagmire the right of the citizens to elect and to be elected is pushed increasingly out of sight, along with some of the most fundamental premises of democracy, such as non-interference by the state in the political affairs of the people, especially their political parties.

The important point here is to go back in history to the reason for the registration of political parties in the first place in 1970. It was not to regulate their affairs as such, but to create a legal mechanism that would enable them to receive state funding. The solution clearly lies in ending the state-financing of political parties and providing funding for the political process instead, within which no political party would be entitled to the patronage of the state.

4. The System of Party Domination and Party-Privilege is Untenable

On the occasion of the review of the party registration regime, the MLPC reiterates the essence of the Supreme Court ruling in the Figueroa case because it remains not only valid, but increasingly so in light of developments since that time. These developments include legislative changes and the strengthening of a "values" oriented system of governance going in the direction of the criminalization of political opinion. The essence of our contention is that the essential flaw in the Canada Elections Act is that it enables political parties to exercise the rights which are by law and by universal standards of human rights the entitlement of all members of the polity. The developments which further strengthen the domination of the political parties of the establishment over the political affairs of the society are leading to an untenable situation which endangers the fundamental democratic rights and freedoms of Canadians.

Since the 2003 Figueroa ruling, the legislative developments we have seen, such as Bill C-24, the Accountability Act, and the yet-to-be adopted C-29, An Act to amend the Canada Elections Act (accountability with respect to loans) have marked the further refinement of a political financing regime that favours the political parties of the establishment while undermining the development of political opposition. Public funds for the political parties of the establishment have been increased at a time they are growing more and more distant from the citizens they claim to represent, while raising private funds for political purposes has been turned into a crime if it goes beyond the restrictive limitations established. Far from contributing to the flourishing of political activity and organization, creating a legislative regime within which Canadians are encouraged to engage in such activities, the legislation has created burdensome requirements for political parties and has generally served to strengthen the process of political marginalization and hamper the right to elect and to be elected.

Within this situation, the development of an alarming trend whereby the ruling elite of Canada are framing "values" as a measure of the standing and legitimacy of political organizations, opinions and activities brings home the importance of democratic renewal to guarantee the exercising of political rights by all individuals. The use of "values" to establish what is "legitimate dissent"and what falls into the category of "un-Canadian" has been seen in the approach towards political discourse and opinion on the war in Afghanistan and the treatment of political prisoners there. It is most glaring in international relations, where political organizations such as Hamas are not recognized as legitimate and political problems are turned into matters to be resolved through military force. The dangers this poses are evident in Canada, such as in the attempts to criminalize Canadians who support the struggle of the Palestianian people for their rights. Even though these rights are recognized in international law, Canadians who uphold them are labeled as "anti-Semitic" or "hate-mongering" and they are increasingly banned from participating in political affairs. The tendency to develop a "value"-oriented system of governance in Canada is dangerous.

Enabling political parties that field one candidate to be registered, burying all parties under a load of administrative requirements and enhancing the system of privileges for the political parties of the establishment is certainly not the solution to the profound problem of the inequality of Canadians when it comes to being able to exercise the right to elect and to be elected and to exercise control over the society upon which they depend.

Reviewing the developments that have led to the current situation, it can be concluded that what is required is a system in which the political process itself is funded, not political parties. This would eliminate the initial reason for the registration and state monitoring of political parties. In this light, the Marxist-Leninist Party of Canada reiterates what it said in its Factum in the Charter Challenge to the 50-candidate threshold:

The evidence entered before the Court shows that the state uses public funds to finance some and not everyone, and some more than others. The regime is based on the premise that members of the political parties which, at any given time, enjoy the support of the majority (sic) are entitled to more public funding and other benefits than those belonging to political minorities. The specific aspects of this relate to the system of political (electoral expense) reimbursement and broadcast allocation based on the number of votes received in an election.

It is the contention of the Intervenor that the main concern of the Canada Elections Act must be to create the possibilities for the individuals in society to enjoy all the constitutional rights and freedoms which pertain to the functioning of the polity. Put in other words, the electoral act must be examined in the light of the Charter of Rights and Freedoms in terms of whether or not it fulfills the obligation of enabling all citizens to exercise their right to elect and be elected. The system of elections must therefore guarantee that restrictions are not imposed by law which hinder the participation of people in the electoral process.

Following from the provisions of the Charter of Rights and Freedoms which recognize the right of every citizen to elect and to be elected, and not the rights of political parties, the benefits accorded by the Canada Elections Act must be equally available to all citizens, regardless of their membership in political parties.

The Parliamentary system of representative democracy in Canada is based on party rule. It is the contention of the Intervenor that the system of party rule, in itself, is in violation of the requirements of a modern polity which is distinguished by universal suffrage. Party rule, whether it exists in the form of ‘first-past-the-post’ as it does in Canada, or in the form of ‘proportional representation’ as it does in other countries, usurps the right of citizens to exercise the right to elect and to be elected.