Recommendations for amendments to electoral legislation were made by the Royal Commission on Electoral Reform and Party Financing in 1992 and in the Annex of the 1993 Report of the Chief Electoral Officer of Canada, tabled on February 29, 1996. Many of these remain valid and await action by Parliament. However, with the passage of time and events, a different approach to updating the Act than previously recommended becomes appropriate in some cases. This report presents recommendations that, while building on some of the earlier work, reflect the new circumstances of the electoral system.
To begin with, the full import of recommendation 105 of the Annex, concerning the appointment of returning officers by the Chief Electoral Officer, became obvious during the recent election. Some three quarters of the returning officers were appointed between June and October 1996; they attended their nine-day training course and then went on to face an electoral event. The remaining 25 percent were appointed between November 1996 and April 1997, with even less time to assimilate their new tasks. It is important to note that these new returning officers are no more or less competent or willing than their predecessors; rather, it was the number of returning officers who had no previous experience with electoral administration — 75 percent — that made the 36th general election so demanding to administer. Like any corporate entity, Elections Canada must have a competent and experienced work force that it can rely on to help it deal with its electoral responsibilities; no corporate entity could allow itself such a turnover in managerial personnel, at such a critical juncture.
Furthermore — and this remains a fundamental issue — the current procedure of appointment by the Governor in Council is anachronistic. It is time for such appointments to be made by the Chief Electoral Officer, who would hold a formal competition open to all Canadians in any electoral district where there is a vacancy. The selection would be based on an objective test of competence. This recommendation should be implemented gradually, that is, as the present returning officers resign or reach the end of their terms when electoral boundaries change. New returning officers would be appointed for a 10-year term. The Chief Electoral Officer could relieve them of their duties in the event of incompetence or unsatisfactory performance.
Voting Rights of Returning Officers
As a corollary, the whole question of the right of returning officers to vote, which at present is exercised only in the event of a tie, should be reviewed. They should have the same right to vote as all other Canadians. Provision should be made for a second ballot, to be held according to the rules for a by-election, within time limits to be specified in the statute.
Nomination of Candidates
Under the current Act, returning officers are legally responsible for accepting candidates' nominations in their electoral districts. This procedure should be modified. First of all, the deadlines specified in the Act cannot be changed under the current legislation, even through the intervention of the Chief Electoral Officer. During the recent election, a situation arose where certain documents submitted in support of a candidate's nomination would have benefited from closer scrutiny to verify, for example, whether the names and addresses of the sponsors were legitimate and whether an individual was, in fact, generally known by a particular surname. The Act should clearly establish such verification as the responsibility of returning officers and should allow them a reasonable period of time for carrying out this duty. In other words, the submission of documents should not be the only requirement for a nomination; candidates should also obtain a document from the returning officer within 48 hours to confirm their nomination.
Second, nomination procedures should be simplified so that they are easier for election officers to administer and easier for prospective candidates to understand. In particular, the formalities of signatures and witnesses established by section 80 of the Canada Elections Act need to be simplified.
The last Parliament had the opportunity to consider Bill C-69, which proposed, in particular, that electoral boundaries be revised every five years, instead of every 10 years as the current legislation provides. The Electoral Boundaries Readjustment Act should be reviewed and the relevance of revising the boundaries every 10 years re-examined, in light of the rapid population growth in various areas of the country.
Once Statistics Canada has transposed the results of the May 1996 quinquennial census (for which data were collected on the basis of 295 electoral districts) to correspond to the 301 electoral districts proclaimed in the Representation Order of 1996, Elections Canada will determine in which electoral districts the 25 percent variance in population established by law is exceeded. On the basis of such data, we can determine which provinces would undergo a redistribution of electoral boundaries every five years, in the event that legislation requiring such redistributions should come into effect.
Third parties, during an election campaign, are individuals and groups who are neither candidates nor political parties. It should be remembered that the sections of the Act limiting the election advertising expenses of such third parties to $1 000 were declared unconstitutional by the Alberta Court of Appeal. That judgment was not appealed to the Supreme Court by the Attorney General of Canada.
The present situation creates an anomaly, since registered political parties and candidates are subject to certain rules regarding their funding and the expenses they may incur to promote their candidacy or challenge that of their opponents, while third parties are not subject to any such constraints. In the long run, it can be expected that this situation, if not remedied, will erode the financial foundation of the electoral system. Both parties and candidates will feel at a disadvantage compared with third parties, who will be able to organize and fund their activities in the shadows without any limits on the expenses they may incur while pursuing their goals.
Consideration should be given to including in the Canada Elections Act provisions that govern third party intervention during an election campaign. The Referendum Act can serve as an example. Any group or individual that expects to spend above a certain threshold (currently $5 000 under the Referendum Act) will have to register with, and receive authorization from the Chief Electoral Officer, just as referendum committees must do at the time of a referendum. Names of the groups and individuals will have to be disclosed. The Chief Electoral Officer will publish all authorizations, as they are issued, so that all Canadians can be aware of the activities of these third parties. Consideration should also be given to establishing legislated spending limits for advertising to support or oppose a political party or a candidate. The limits might take into account the average amounts that the various political parties and candidates normally spend on advertising and will be lowered accordingly. This would make it possible to reach the objective of a level playing field that underlies the financial provisions of the present Act.
Any third party that received authorization from the Chief Electoral Officer would have to submit a report of its income and expenditures, and disclose all contributions pledged or received for the period from one year prior to the registration date to six months following election day. Where a company or union is concerned, the report must include the date and the resolution passed by the governing body authorizing it to intervene in the campaign. To make the system as airtight as possible, the Act will have to include provisions prohibiting collusion between candidates and third parties and among the third parties themselves. Penalties would be levied for any contravention of the Act. All Canadians have the right to know, at a minimum, who is intervening in the political debate and who is doing so through financial support; they are also entitled to know that spending limits apply to all participants. The rules governing registration and the requirements for submitting reports would have to be assured the same administrative flexibility as provided under the Referendum Act. It should be noted that the above provisions could be modified and adapted to address the matter of issue advocacy.
Amendment of the blackout provisions in the Act goes hand in hand with updating the sections relating to third party intervention during an election campaign. At present, a blackout on advertising applies at the start of the campaign and, above all, on the day before election day and on election day itself. The blackout applies to all political parties but does not apply to either candidates or third parties. This is a secondary effect of the Alberta Court of Appeal judgment mentioned earlier. This anomaly created confusion among broadcasters, candidates and political parties and should be rectified.
It would also be advisable to enlarge the scope of legal access by candidates when canvassing electors. At present, the Act stipulates that candidates must have access to multiple-family dwellings. It would be appropriate to extend access to other types of buildings, such as commercial or educational sites, and any public building.
The introduction of staggered voting hours to accommodate the country's different time zones proved successful and achieved the desired results, although electors in part of Saskatchewan were the last to cast their ballots. According to the established objectives, the people of British Columbia were to be the last to vote. However, since Saskatchewan remains on standard time in summer, while the rest of the country moves their clocks ahead, the Act will need to be changed if lawmakers wish to obtain in summer the result that would occur if an election took place while the whole country was on standard time. In practical terms, the Act could be amended to include an explicit provision that, during the period when most of the country is on daylight saving time, the Chief Electoral Officer may adjust voting hours in electoral districts in a time zone that does not switch to daylight saving time.
While considering any amendments to the Act, it would be appropriate for Parliament to consider a consolidation of the Act, to allow clearer numbering of the sections and make referring to the legislation simpler and more effective. In addition, attention should be directed to the recommendations that Mr. Peter S. Grant, the Broadcasting Arbitrator, makes in his report, which appears as Appendix D of this document.
Furthermore, during the coming months, Elections Canada staff, together with returning officers and their staff, will carry out an in-depth evaluation of the administration of the recent election. Fresh modifications to the Act may be suggested as a result of that examination. If such is the case, an additional report will be submitted to the Speaker of the House or to whatever committee of the House or Senate is responsible for reviewing amendments to the Canada Elections Act.
Given the continually evolving nature of the electoral process and the dynamics that affect it, the time has come to recommend a more systematic and formalized process for considering legislative changes. To follow up on the recommendations of the Royal Commission report, which is still under consideration by the responsible parliamentary committee, and to proceed with the necessary review of the electoral legislation, it is recommended that Parliament consider the merits of establishing a House of Commons special committee. Given the workload, which promises to be substantial, there would be every advantage to setting up such a committee.
Finally, it is important to remember that the House committee responsible for review of the Referendum Act was not able to carry out its task during the last Parliament. The review was to be performed three years after the Act was passed in May 1992.