Modernizing the Electoral Process – Recommendations from the Chief Electoral Officer of Canada following the 37th general election

Part 2: Greater Accessibility for Candidates and Political Parties

The object of the electoral system is, of course, the casting of votes to select representatives to the House of Commons from the various candidates who have come forward. The process by which a person becomes a candidate can be as important as the actual final casting of the elector's vote. The best person in the world cannot be elected if he or she does not successfully complete the process to become a candidate. Also, the electorate will not be able to fully exercise an informed vote unless that person, and, if he or she is endorsed by a political party, that party, has a reasonable opportunity to participate in the election.

Part 2 of this report addresses aspects of the electoral process which impact upon the ability of persons and political parties to participate fairly and fully in the electoral process. It is divided into two chapters. Chapter 1 addresses the specific process by which a person is nominated as a candidate. Chapter 2 looks at the current party system in the Canada Elections Act and sets out recommendations which are designed to enhance, and rationalize, the participation rights of smaller parties.

Chapter 1: Enhancing Candidates' Participation

Nomination

It is a constitutional right of electors to run as candidates in federal elections. The ultimate goal of the nomination process should be to maximize the ability of eligible persons to exercise this constitutional right without compromising the effective and efficient operation of the process.²⁵

It is reasonable to require that those seeking elected office be serious in their willingness to undertake the burdens involved in seeking public office. It is also reasonable to ensure that those seeking public office are entitled to so do and to require that the information in support of candidature be reliable and accurate. In the pursuit of these goals, however, the current system has become unduly complex, with multiple and redundant checks aimed at ensuring the seriousness of the prospective candidate and the reliability of submitted information. Furthermore, some of these checks serve outdated notions that no longer reflect modern views of public office or they fail to serve their intended goal.²⁶

Cumulatively, these checks create an administrative burden for both those seeking office and for the electoral system charged with verification of those requirements. The section that follows, explores how the complexity of the current nomination process can be reduced and simplified, with little or no reduction in the certainty respecting a candidate.

The section below also deals with the issue of equality of opportunity as it relates to employee leave of absence to be a candidate in an election. Only employers to whom Part III of the Canada Labour Code applies are required to grant such leave. This inequality could be dispensed with by extending the obligation to all employers, as discussed below.

Technically, under the current system, a person who wishes to be a candidate in an election does not put his or her candidature forward. The prospective candidate must be nominated by a minimum number of electors, as specified in the Act.²⁷

The nomination paper must have the names, addresses and signatures, recorded in the presence of a witness, of at least 100 electors resident in the electoral district in which the candidate wishes to run (only 50 electors are necessary for electoral districts listed in Schedule 3 of the Act – which are generally the more remote and sparsely populated districts). The paper must also have the name and address of each witness to those signatures. The witness to the candidate's consent (discussed below) is under an obligation to use due diligence to ensure that each of the nominating electors is a person resident in the electoral district.²⁸

The Act specifies additional information that must be included in the nomination paper. This includes personal and administrative information necessary to compete in the election and information establishing compliance with administrative requirements of the Act respecting the prospective candidate's official agent (including his or her signed consent) and the proposed auditor. If the candidacy is endorsed by a registered or eligible political party, the name of that party must be given. If there is no party affiliation, prospective candidates must indicate their choice of whether they will have the word "independent" or no designation of political affiliation recorded under their name in election documents.

The nomination papers must also include a statement by the prospective candidate consenting to the nomination. This statement must be signed and sworn in the presence of a witness who is an elector, but is not the person who administers the oath to the candidate; it must have the signature of that witness.

Currently, a nomination paper must be received by the returning officer or designate, in the electoral district in which the nominee wishes to be a candidate. This paper can be filed at any time after the issue of the notice of election, but must be received no later than 2:00 p.m. on the Monday that is the 21st day before election day. The paper must be filed by the person who witnessed the prospective candidate's consent to be a candidate. A candidate cannot file his or her own nomination papers.

The nomination paper may also be submitted by electronic means within the statutory time period, provided that the original documents are received by the returning officer not later than 48 hours after the close of nominations.²⁹

When the witness to the prospective candidate's consent files the nomination paper, the Act requires the witness to swear an additional oath before the returning officer confirming that the witness knows the prospective candidate, that the witness is qualified as an elector, and that the prospective candidate signed the consent to the nomination in the presence of the witness.

When the witness files the nomination paper, a deposit of $1 000 must be made (which is refundable if the nomination is not accepted by the returning officer, or on the candidate's compliance with the filing requirements of the Act). There must be a statement by an auditor and an official agent consenting to act in that capacity, and, if applicable, an instrument in writing signed by the leader of the registered party or eligible party (or designated representative) that states that the prospective candidate is endorsed by the party in accordance with the Act.³⁰

The Act imposes an express duty upon the returning officer and the assistant returning officer to be in the office of the returning officer between 12:00 noon and 2:00 p.m. on the closing day for nominations to receive nominations respecting prospective candidates whose nomination papers have not yet been received.

The nomination having been received, the returning officer must then confirm whether the candidacy is accepted or refused. This must be done within 48 hours after a nomination paper is filed. The returning officer is required to verify, in accordance with the instructions of the Chief Electoral Officer, that the nomination paper is complete. This includes verifying that the paper has the required number of nominating electors' signatures and that those electors are entitled to vote in the electoral district in which the prospective candidate seeks to be a candidate. If the returning officer refuses to accept the paper, it can be replaced with a new nomination paper or it can be corrected, provided that the new or corrected paper is filed with the returning officer before the close of nominations.

2.1.1 Signatures of Nominating Electors

The requirement that a nomination paper be accompanied by a specific number of signatures of supportive electors is an old one, originating in 1874. As the Royal Commission on Electoral Reform and Party Financing (the Lortie Commission) stated in its 1992 report Reforming Electoral Democracy, the requirement exists so prospective candidates can demonstrate that they have a degree of support for their candidature and is justified by the need to have elections contested only by candidates who have shown that they represent the political preference of some voters.

The requirement for the signatures of 100 (or 50) eligible electors imposes a serious demand upon the resources of both the candidate in securing those signatures and upon the electoral system in verifying them. There were three official rejections of nominations during the course of the 37th general election, each of which was due to the fact that the confirmation process revealed that too few of the submitted signatures were from electors residing in the candidate's electoral district. One further rejection was referred to the Commissioner of Canada Elections.³¹

The value being served by the current requirement is nominal at best. In the case of candidates who are nominated by parties, that nomination in itself (in light of the statutory requirements for an organization to be considered an eligible party) serves as an indication of some electoral support and the fact that a candidate enjoys the political preference of some voters. The nomination process within political parties can itself be arduous, and can serve as a greater indication of political seriousness than the ability to induce 100 (or 50) individuals to sign one's nomination papers.

Even for those candidates who run under an independent banner, the modern reality is that the ability to secure 100 (or 50) signatures as part of one's nomination does not demonstrate any real electoral support. Past elections are rife with candidacies endorsed by the required nominating signatures, but which, in fact, enjoyed little serious support. More than anything else, the current requirement is more a measure of a prospective candidate's administrative abilities than of his or her electoral support.

In addition to the benefits of the requirement being questionable, it imposes a strain on the resources of the electoral system. It has proven to be administratively difficult to verify the submitted signatures within the 48 hours provided for the decision on candidacy to be made. At best, the time available allows only the verification that the address of a nominating elector falls within the relevant electoral district. It is not possible to verify the other bona fides of the signatures. This surely reduces further, whatever benefit is seen to flow from the requirement to have the signatures in the first place. Also, the answer does not appear to be to make more time available for the verification of signatures. Parties have voiced concerns that the 48-hour period for verification is too long.

Recommendation: In order to reduce the administrative burden on a prospective candidate, the requirement for the signatures of 100 (or 50) eligible electors should be dropped from the nomination process.

2.1.2 Requirement for Witness to File Papers and Swear Oath

The value of the requirements that nominating papers be filed with and sworn before the returning officer by the witness to the candidate's consent is also questionable. The witness is required to swear before the returning officer that he or she knows the prospective candidate, that the witness is a qualified elector, and that the prospective candidate signed the consent in the presence of the witness. This requirement demands the personal attendance of the witness before the returning officer and the swearing of an oath there, which is an additional administrative burden, both upon the parties and the electoral system.

Furthermore, the Act is not consistent in its requirement for the witness to file and swear an oath. Section 73 of the Act permits a candidate to send his or her nomination papers and supporting documents directly and personally to the returning officer by electronic means. In that case, the witness is not required to file the papers and does not have to take an oath.

Recommendation: Prospective candidates should be permitted to file their nomination papers themselves. The requirement for a witness to the candidate's consent to file the nomination papers and swear an oath before the returning officer should be dropped.

This will make the statutory practice consistent, whether the papers are filed manually or electronically.

2.1.3 Candidate's Consent Under Oath to Run

The requirement that a candidate's consent be sworn is likely intended to ensure the seriousness of a candidature in three ways: to impress upon the candidate the seriousness of the act which he or she is about to embark upon; to discourage frivolous candidacy because of the religious or moral implications of the oath; and, to increase the certainty of the information being given in light of the penalties under the Act for giving false oaths. (Punishable under the Criminal Code as perjury under s. 131, or under the Canada Elections Act as a breach of s. 549(3).)³²

At the same time, while the requirement for the prospective candidate's oath likely imposes no great burden upon residents of urban centers where officials capable of taking oaths are easily at hand, the same is not true for all prospective candidates residing in more remote areas. Difficulties in locating persons before whom oaths may be sworn also loom larger when the time limits for filing nomination papers are at stake.

Whatever one's view as to the ethical or moral impact of modern oath taking, the question must be asked as to whether the value added by the requirement for the candidate's oath is truly necessary. In modern times, the $1 000 deposit required to file a nomination likely results in a similar degree of certainty respecting a candidate's commitment to participate in the electoral process and comply with the electoral requirements.

If the requirement for an oath were dropped, the enforcement aspects of the Act respecting the veracity of submitted information can be maintained by making it an offence for a candidate to make a false statement on a nomination paper, similar to various other prohibitions in the Act respecting false or misleading statements (such as ss. 56, 91, 92 and 281).

Recommendation: The current requirement for the prospective candidate's consent to be made under oath should be dropped. Statutory prohibition against making a false or misleading statement in a nomination paper should be added.

2.1.4 Period to Confirm Nomination

If the above recommendations respecting the simplification of the nomination process are adopted, returning officers will not require 48 hours to verify a nomination, once filed. The verification can be almost immediate. Furthermore, removing the current 48-hour verification period from the Act will facilitate the printing of ballots.

Recommendation: The Act should be amended to provide that a returning officer must verify a nomination paper no later than the end of the nomination period on the 21st day before election day.

2.1.5 Candidate's Deposit

The candidate's deposit acts not only as a performance guarantee, which is its principal role under the Canada Elections Act, but also indirectly operates to reduce the likelihood of candidatures that have little or no intent to participate seriously in the process. The requirement to post a $1 000 refundable deposit contributes in a practical sense to reducing the likelihood of a candidate putting forth his or her candidature when that person has no real intention of running. However, it appears that the effectiveness of this tool has been inadvertently diminished. Prior to 1993, the Act stipulated that the deposit (which was then only $200) had to be in legal tender or certified cheque made payable to the Receiver General for Canada. This requirement was removed with the 1993 adoption of Bill C-114. As a result, at every general election since the removal of the requirement for cash or certified cheque, there have been a few incidences of cheques being returned for lack of sufficient funds. The Act is silent on the consequences of NSF cheques.

Recommendation: The Act should be amended to require that a candidate's deposit be made by way of cash, certified cheque, money order or other guarantee of funds as approved by the Chief Electoral Officer.

2.1.6 Party Filing of Candidate's Deposit

The Act currently requires that when a candidate's nomination papers are filed with the returning officer, they must be accompanied by the candidate's deposit (s. 67(4)). This is one of the older electoral process requirements and originally appeared in the Dominion Elections Act, 1874 (at which time the deposit was $50).

When candidates are endorsed by political parties, it is not uncommon for the candidate's deposit to be provided by the endorsing party. The current requirement for nomination papers to be accompanied by the deposit, results in the party having to undertake numerous transfers of funds from party accounts to the various candidates before it is then filed with the relevant returning officers. Political parties have requested that provision be made to allow parties to deposit directly with the Receiver General for Canada, the appropriate sum representing the deposit for all of the candidates endorsed by the party. Direct deposit would appear to be a practical and effective amendment that takes into account the modern realities of electronic fund transfer, provided that the administrative process can be developed to adequately accommodate this innovation.³³

Recommendation: The Act should be amended to provide, once the Chief Electoral Officer is satisfied of the implementation of an adequate administrative process, that a political party may remit the deposits required for those candidates endorsed by the party to the Receiver General through the Chief Electoral Officer.

As a corollary provision, s. 67(4) of the Act should also be amended to provide that where the returning officer is satisfied that a candidate's deposit has been filed directly with the Receiver General for Canada through the Chief Electoral Officer by the political party endorsing the candidate, the nomination papers need not be accompanied by the deposit.

In order to prevent miscommunication and inadvertent errors in the process, the Act should further provide that a returning officer must consult with the Chief Electoral Officer before refusing a candidature, including for failure to file the required deposit.

2.1.7 Party Filing of Leader's Endorsement of Candidate

When a candidate has been endorsed by a political party, the candidate is required to file with his or her nomination papers, a signed statement by the leader of the relevant party indicating that the candidate has been endorsed by the party (s. 67(4)). Unlike other aspects of a candidate's nomination material, which are generated locally, party leader endorsements are generated at party headquarters. Parties have advised Elections Canada that the requirement for the party to generate and send individual endorsements for each candidate to each relevant returning officer imposes a considerable resource demand upon the party.³⁴

Recommendation: The Act should be amended to allow parties to file with the Chief Electoral Officer, a confirmation of the full names, addresses, and number of candidates who have been endorsed by the party, and to allow returning officers to accept a nomination paper on being satisfied that the Chief Electoral Officer has received a party endorsement of that candidate. In order to prevent miscommunication and inadvertent errors in the process, the Act should further provide that a returning officer must consult with the Chief Electoral Officer before refusing a candidature, including a refusal because of a lack of leader's endorsement.

2.1.8 Equal Opportunity to Be a Candidate

In Strengthening the Foundation: Annex to the Report of the Chief Electoral Officer of Canada on the 35th General Election, it was recommended that the right of an employee to a leave of absence to seek office in a federal election be extended to all employees, not simply those included under Part III of the Canada Labour Code. Specifically, it was stated that:

Section 87 of the Canada Elections Act [now s. 80] requires every employer to grant an employee a leave of absence, with or without pay, to seek nomination as a candidate and to be a candidate for election. This section does not extend to those working outside of federal jurisdiction because its application is currently restricted to employees included under Part III of the Canada Labour Code.

This provision can thus be viewed as discriminating against those who work outside of federal jurisdiction. The extension of this right to all employees would be in accordance with s. 3 of the Canadian Charter of Rights and Freedoms. It is relevant to note that s. 148 of the Act [now s. 132], which guarantees every employee four consecutive [now three] hours for the purpose of casting his or her vote, applies to all employers.

This recommendation, which was also made by the Lortie Commission in 1992, has not yet been implemented.

Recommendation:The right to a leave of absence without pay for the purpose of being a candidate at a federal election should be extended to all employees, whether the individual is employed under federal, provincial or territorial law. This should not preclude an employer from authorizing paid leave. On the understanding that there may be instances where an employee's leave of absence could be seriously detrimental to an employer's operations, the Act should provide for an exception in such cases, along with a mechanism to determine the effect of an absence where the issue is in dispute. An example of such a mechanism already exists in the Manitoba Elections Act.³⁵

Chapter 2: Enhancing Political Parties' Participation

The vitality of any political system can be seen in its capacity to evolve and reflect changes in the society in which it operates. The continuing strength of the Canadian political system is demonstrated by the gradual emergence and continuing development of our party system. That evolution can be traced in the growth of the rights and responsibilities of political parties in the history of the Canada Elections Act.³⁶

The reforms suggested below are aimed at redressing inequities that have developed under the current legislative scheme as a result of the expanding role accorded to parties in the Act. Some of these inequities arose in pursuing political ends that are either no longer necessary or no longer supportable in the face of the political rights guaranteed by the Charter of Rights and Freedoms.

The Royal Commission on Electoral Reform and Party Financing, the Lortie Commission, stated in its 1992 report (Electoral Reform and Party Financing), that political parties are the "primary political organizations" in the Canadian system of representative electoral democracy. As noted in that report, political parties serve three important functions. They:

• structure electoral choice and thus, make the vote meaningful;
• provide mechanisms for political participation and thus, enhance democratic self-government; and
• organize elected representation in Parliament and thus, contribute to the effective operation of responsible government.

Thus, parties have a role in the political process, not because of any inherent political right of parties themselves, but because these organizations have been proven to be powerful and vital tools for the development of political thought and the marshalling of the political process. It is this contribution of the party system that ultimately enhances the electoral rights of electors. Reforming inequities in party participation, therefore, should be seen as useful, not simply from the perspective of the party organization, but from the perspective of the public, which benefits from the electoral role played by parties.

2.2.1 Status of Eligible Party

The current party system under the Canada Elections Act is unduly complex and creates unnecessary distinctions between parties. It needs to be simplified and clarified.

The concept of "party" is integral to the Canada Elections Act. A political party is a group of people who share a common political ideology and who come together in a formal organization with rules and structure, a leader and other officers, for the primary purpose of electing their members to the House of Commons. The modern Canadian electoral system is, for the most part, predicated on the existence of political parties.

The Canada Elections Act recognizes several types of status for political parties: eligible parties, registered parties, suspended parties, parties with a right to have their name on the ballot, and third parties (the last of which may not even be a political party as defined above).

The central focus of the party structure of the Canada Elections Act is the registered party. A registered party is a party that has registered with the Chief Electoral Officer and fields at least fifty confirmed candidates in a general election.³⁷

The Act is currently structured around the idea that the registered party is the organizational form which is most likely, and best able, to form governments. For that reason, the participatory rights and obligations of political parties in the Act are organized around the registered party. Registered parties are given greater participation rights under the Act than other parties (e.g. the right to party name on the ballot, access to information respecting electors, ability to put forward nominees to work as revising officers, the ability of their candidates to put forward nominees to work as deputy returning officers and poll clerks, the right to maintain a party name from election to election, the right to receive finance surpluses from candidates at the end of a campaign, etc.). Registered parties also receive public funding, which other parties do not, and have greater reporting obligations.

When the concept of a registered party was first introduced in the Act in 1970, the requirement that the party run at least 50 candidates in a general election was imposed primarily as an indication of a serious commitment to the political process.

However, when the Election Expenses Act created the first legislative regulation of spending limits and public funding in 1974, the concept of registered party began to evolve from simply the hallmark of a major political party, to the touchstone for apportioning public funding and the apportionment of other finite resources, such as broadcasting time. Insofar as public funding and other resources could not be given to everyone who wished to participate in an election, the ability to field 50 candidates began to serve as the basis for eligibility for apportionment. This was, in effect, an enhancement of the original concept of a registered party. The fielding of 50 candidates was viewed as demonstrating serious intent to engage in the rigors of electoral competition at a level indicating relatively broad appeal for its programs and ideas (as stated by the Lortie Commission), which would in turn justify access to legislatively mandated resources.³⁸

A political party applies to the Chief Electoral Officer for registration as a registered party. At that time, it must satisfy the Chief Electoral Officer regarding a number of administrative requirements. They include the name, the short form name, and logo of the party (which must not be confusing with that of other already registered parties), its address, its officers, names and addresses of one hundred electors who are members of the party, and so forth. These details establish the standing of the applicant as a "party" and provide the administrative information for operational purposes. Until the calling of a general election, at which time it has the opportunity to field the required number of candidates, a party that has passed this administrative stage of the process is known as an "eligible" party. Subsequently, at the close of the period for the confirmation of nominations at the next general election, if that eligible party is unable to field the required number of candidates, it loses its eligible status.

A registered party that fails to maintain the requisite number of candidates in a general election loses its registered status and becomes a suspended party. Because that party will have been subject to certain reporting requirements as a registered party, because it will have been subject to specific limitations and because it may have enjoyed certain economic advantages because of its status as a registered party, it is required, as a suspended party, to file specific reports with the Chief Electoral Officer to complete the record of its activities. A suspended party is also required to turn over the cash equivalent of its assets, after debts, to the Chief Electoral Officer, who forwards it to the Receiver General for Canada. Once these steps are taken by the suspended party, the Chief Electoral Officer officially deregisters the party (notwithstanding that it was, in fact, deemed to be deregistered on suspension). The party can apply again to be registered (which, with compliance to a number of accompanying administrative responsibilities – s. 394) will stop the required passing of assets), at which point the process begins anew as it assumes the status of an eligible party.

Both eligible parties and registered parties may also lose their status for failure to comply with various reporting requirements of the Act. This penalty is at the discretion of the Chief Electoral Officer. In such cases, an eligible party loses its eligibility and a registered party becomes a suspended party.

A party may also apply for the withdrawal of its application for registration or for withdrawal of its deregistration.

The current flaw in the existing party structure of the Act lies in its focus on registered parties in its grant of rights and imposition of obligations.

There have been disparities in rights between registered parties and other political parties since the introduction of the concept of registered parties in the 1970s. These disparities continue under the current Canada Elections Act. For example, only registered parties enjoy access to lists of electors under s. 45 of the Act and only registered parties (or their relevant local electoral district association) are entitled to a candidate's financial surplus at the end of an election. Only registered parties are entitled to the broadcasting rights under the Act. Only registered parties are entitled to the reimbursement from the public purse of a portion of election expenses. Furthermore, prior to the amendments made by S.C. 2001, c. 21, only a registered party candidate had the right to the inclusion of his or her party affiliation on the ballot, while a candidate fielded by another party did not. While this distinction was partially addressed by amendment under S.C. 2001, c. 21, other distinctions were not resolved (the amendment provided that an eligible party fielding at least twelve candidates will have the right to be included on a ballot).³⁹

With the passage of Bill C-2, non-registered political parties were subjected to a further inequality, this time respecting their spending limits. Prior to Bill C-2, only registered parties and candidates were subject to spending limits on election expenses, and only registered parties and candidates were subject to the reporting requirements of the Act, since they were the only organizations benefiting from public funding support.

The introduction of restrictions upon third party election advertising changed that.

As originally conceived for the purposes of Bill C-2, a third party would not strive for the election of itself or its members to the House of Commons. Its participation was thought of as being limited to supporting (or opposing) the election of some other person to the House, in the belief that the third party's particular interest would be advanced by its support or opposition for the person seeking election.⁴⁰

However, the definition of "third party" in the Act is drawn so broadly that it technically results in every group or person not registered as a party or candidate, being considered a third party. The Act defines a third party as "a person or a group, other than a candidate, registered party or electoral district association of a registered party". Thus, a political party, which is not a registered party, becomes by default a "third party", notwithstanding that the party may be attempting to secure the election of its members to the House of Commons rather than operating to support (or oppose) the election of others.

The problem with this is that the spending limits and reporting obligations imposed upon third parties by the Canada Elections Act are designed to reflect the status of a third party as a body supporting (or opposing) the election of others, rather than attempting to secure the election of its own members. These spending limits are imposed only on election advertising expenses, unlike the broader limits imposed upon a registered party's election expenses, and they are much lower than the limits for registered parties. The reporting obligations, insofar as they are focused upon contributions and expenses relating to advertising expenses, are much less comprehensive than the reporting obligations of registered parties.

Prior to the third party scheme, political parties, which, because they were new or because they were not sufficiently mainline to qualify as registered parties (thereby securing a portion of public funding support), were nonetheless able to participate fully in an election to the limits of their financial resources. Thus, the electoral system continued to benefit from their participation.

Under Bill C-2, unregistered political parties default to the status of a third party and are thereby subject to the third party regime in the Act. This misrepresents the nature of those parties. It highlights and expands existing disparities in electoral participation, and imposes an inappropriate reporting regime upon those parties.

There are three essential sets of rights and obligations respecting participation in federal elections under the Canada Elections Act: public funding rights, participation rights, and voter identification rights.

A party's right to public funding (whether through the tax credit scheme, or through direct partial reimbursement of election expenses) warrants evidence of some meaningful support by the Canadian electorate. This requirement is justified by the recognition that public funds cannot reasonably be expected to be extended to everybody who may wish to seek election to the House of Commons. The same argument would apply to broadcasting rights, which, even though they do not involve a claim upon the public purse, draw upon finite resources (broadcasting time) and have a cost to the broadcaster.

Voter participation and voter identification rights are not subject to the same constraints as public funding and, therefore, should be approached on a different basis. In other words, the concept of "registered" party, as indicative of the extent of a party's participation in an election, which is useful and justifiable in the context of the apportionment of finite resources, may not be as useful in the context of participation and voter identification rights.

The fact that a party does not field at least fifty candidates should not preclude the organization from political party status, nor should it affect the right of the electorate to know the party affiliation of candidates being run by that party.

The current party structure of the Act is unduly focused upon public funding aspects of party participation. It fails to recognize the true role of those parties that may not participate to a degree warranting public funding, but nonetheless play an important and historic role in the electoral process.

While parties may enhance the development of policy and the selection and campaigns of candidates, they may also operate to impose practical restraints upon those who wish to stand for election and represent the views of that party. Consequently, it is important to the concept of an informed vote that electors know if a candidate is a member of a political party.

More than one person is required to form a political party. This is implicitly recognized in s. 366(2) of the Act, which requires a party to have at least 100 members who are qualified electors. By definition, the concept of a political party involves the coming together of numbers of people. However, from the perspective of the informed vote, the identification of a candidate as being endorsed by a party does not depend on the number of other candidates that party chooses to endorse. It is important that every candidate endorsed by that party be so identified. This is so even if a party chooses to endorse only one candidate. Just as in the case of a by-election (where there will be only one candidate for a party), the voters in a general election who must consider a candidate should know if that individual is associated with a party and may have party commitments.

The ability of parties to participate in an election should also not be tied to candidate numbers in other matters, except those involving public funding or broadcasting rights (which will be discussed in Part 4). Once it is granted that party participation in an election is a beneficial thing, as many participation rights as possible should be extended equally to all parties. There appears to be no reason why participation rights not tied to public resources should be extended only to parties that field a specific number of candidates.

Extending participation rights to all parties will enhance the ability of those parties to get their messages to the public and will further the possibility for an informed vote. Emerging parties, or parties that otherwise do not meet the requirements for registered party status, should not be denied planning tools, such as voter information, that are made available to registered parties. This makes it more difficult for new parties to get their messages across to the public as efficiently or effectively as registered parties. It makes it harder for new ideas to be put before the electorate.

The imposition of third party spending limits upon non-registered political parties also ultimately increases the difficulty those parties experience in putting their policies and positions before the electorate.

The right to maintain a party name between elections should also not be restricted only to registered parties. Even a party that runs 12 candidates at a general election, and has the right to have its name appear on the ballot, does not enjoy any protection under the Act respecting future incursions against its name by other parties. It may lose its ability to run in future elections under that name, if the name is appropriated by another party. The registration requirements of the Act respecting confusing names only apply to names of registered parties and parties that have been designated eligible for registration. It is possible for a party to apply for registration under the statute with a name that may be confused with that of another, non-registered party. In determining whether the applicant's party name may be confusing, the Chief Electoral Officer may take into account only the names of other registered parties and parties that are eligible for registration. A party that had its party name on the ballot in the last general election because it ran between 12 and 49 candidates, will not be considered in that process unless it has re-applied for registration after that general election and was again designated eligible. Thus, it is possible for an emerging party, through the loss of its name, to lose its party recognition and the advances it has made in getting its message across to the electorate.

Lastly, reporting obligations, which currently apply only to registered parties, should apply to eligible parties as well. The fact that a party does not field 50 or more candidates does not diminish the importance of disclosure for smaller parties in the context of the principle of the informed vote.

Consequently, for all of the above reasons, it is important that the party structure of the Canada Elections Act be amended to better reflect the realities of political party participation in an election. The following recommendations should facilitate the emergence of new parties, provide more complete financial disclosure by eligible parties, and bring all political parties into a similar and appropriate regime in the Act.

Recommendations: There should be only two types of political parties under the Canada Elections Act – eligible parties and registered parties.

The definition of eligible parties should be expanded to include all organizations that exist as political parties, that satisfy the administrative requirements respecting the existence and structure of the party under s. 366 of the Act, and that have, in a general election, between 1 and 49 confirmed candidates for election to the House of Commons.

A registered party would be a party that has in a general election at least 50 confirmed candidates for election to the House of Commons.

All eligible and registered parties should be entitled to the same rights and obligations except those involving the division of limited resources; they should further be subject to the same disclosure and reporting obligations.

Spending limits for an eligible party should be determined in the same manner as spending limits for a registered party.

The status of an eligible party would continue unchanged from one general election until the close of the period for the confirmation of nominations in the next general election, in the same way that registered parties currently maintain their registered status from one general election until the next.

A registered party that in a subsequent general election has only 1 to 49 confirmed candidates would resume the status of an eligible party and continue to be entitled to the rights and obligations, including reporting obligations, of an eligible party.

Failure to have at least one confirmed candidate at the close of nominations in a general election would cause a party, whether it was previously designated registered or eligible, to lose its party status.

To avoid the loss of party status that might result due to merely temporary circumstances, a party that has lost its status as an eligible party because it lacks the required confirmed candidates at a general election, could preserve its name if it advises the Chief Electoral Officer of its intention to field at least one candidate in the next general election. This would avoid unnecessary duplication of effort, which would result if the party were required to start afresh and provide the Chief Electoral Officer with sufficient evidence of party status. Failure in the next general election to secure the required number of confirmed candidates to maintain party status would result in the loss of that status. The party should continue to be subject to its reporting obligations during this period.

The category of "suspended" parties should be eliminated in order to reduce the complexity of the Act.

A political party that wished to cease being treated as a party under the Act could relinquish that status. It would be subject to final reporting obligations.

Appendix 2 illustrates the application of these recommendations.

2.2.2 Distribution of Lists of Electors

Aside from being a necessary tool to manage the actual voting process, the list of electors is an important planning and campaigning tool. For this reason, the Canada Elections Act provides limited rights of access to these lists to parties and to candidates. Section 94 provides that during an election, returning officers are to distribute copies of the preliminary lists of electors to each candidate in the electoral district who requests it. Outside of the electoral period, s. 45 directs that the Chief Electoral Officer is to provide annually, to each member for each electoral district, and on request, to each registered party that endorsed a candidate in the electoral district in the last election, a copy (in electronic form) of the list of electors for that district (taken from the National Register of Electors). Also, under s. 109, the Chief Electoral Officer is required, after election day, to provide copies of the final list of electors for each electoral district to each registered party that endorsed a candidate in the electoral district and to the member who was elected for that district.⁴¹

Receipt of a list of electors carries with it the duty to use that list responsibly and to protect the privacy rights of electors. Section 110 imposes limitations upon the use that parties, members, and candidates can make of the lists that they receive. (Generally, recipients are restricted to using the lists to communicate with electors, including soliciting contributions. The extent of the use of the lists for such communication varies, depending on the status of the user as a registered party, a member or a candidate.) Section 111 prohibits any person from knowingly using personal information recorded in a list of electors for a purpose other than to enable registered parties, members or candidates to communicate with electors in accordance with s. 110 or in a federal election or referendum. It is an offence to breach these restrictions (s. 487), punishable on summary conviction by a fine of not more than $1 000, or imprisonment of not more than three months, or both.

The distribution provisions of the Act in s. 45 (respecting the annual distribution of lists) and s. 109 (respecting the distribution of final lists of electors after election day) are inequitable both in their failure to make eligible parties entitled to a copy of the list and in their restriction of the right of distribution only to parties that ran a candidate in that district in the last election.⁴²

Restricting the distribution of the list to registered parties that ran a candidate in the electoral district in the last election, makes it difficult for parties that do not meet these requirements to expand into new electoral districts or districts in which they have hitherto not run a candidate. In the case of electoral districts, it creates an advantage for parties that already have a presence in the electoral district over parties seeking to expand.

The existing restrictions on the distribution of lists in ss. 45 and 109 were likely aimed at protecting the privacy of electors by limiting unnecessary distribution of the lists. However, as explained above, distribution to eligible parties and to parties planning to expand into new districts is a useful and necessary aspect of fair competition in the electoral process.

Concerns may be raised that a wider distribution of the list may carry with it a greater risk to privacy concerns. In order to avoid unnecessary distribution, where parties had not run a candidate in the district in the last election, distribution could be restricted to where the lists were requested by those parties as is the case with distribution of the list to registered parties now. Beyond this, it is important to recognize that while distribution of the lists is currently controlled, the universe of distribution to registered parties and candidates cannot be viewed as being narrow. The real protection respecting the privacy interests of the lists lies in the offence provisions respecting abuse of the information on the lists. These provisions will continue to apply to the expanded distribution. All parties receiving the lists would also continue to be guided by guidelines issued by Elections Canada.

Recommendation: Sections 45 and 109 of the Canada Elections Act should be amended to give eligible parties the same rights as registered parties respecting access to annual and final lists of electors, and to provide that the list for a district should be distributed to all registered and eligible parties on request whether or not they had run a candidate in that district in the last election.

 

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