Statement made on 13 December 2011 by Senator Serge Joyal
Hon. Serge Joyal:
Honourable senators, in the debate on Bill C-13, I would like to address essentially one part of the bill, namely, part 18 of the bill entitled "Canada Elections Act," which contains only one provision: an amendment to subsection 435.01 of the Canada Elections Act.
I want to raise this issue, honourable senators, because one of our key responsibilities in reviewing legislation coming from the other place is to look into the constitutional impact on either the Constitution of Canada or the Charter of Rights and Freedoms.
In reading that part of Bill C-13, I paused a moment to ask myself whether this question was not challenging, essentially, section 2(b) of the Charter of Rights and Freedoms, which is the protection of freedom of expression and which states, under "fundamental freedoms," section 2:
Everyone has the following fundamental freedoms: . . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication . . .
The reason I bring this section to your attention this afternoon, honourable senators, is that we are in the period of the year whereby each one of us are solicited by many charities, organizations or initiatives to provide our financial support. I can name a few. They include, of course, charities that alleviate conditions of poverty. There are initiatives to enhance our cultural institutions. I see senators on both sides whose names have been attached to important initiatives. I would not like to mention them, but I know some of them very well. Some senators are involved with literacy initiatives and others might be involved in animal protection societies. There are those who like guns and who could be interested by the activities of the National Rifle Association and provide them a lot of money.
Each one of us, like any Canadian, is free to give as much as we want to all those causes. Our limit is essentially the strength of our conviction, the level of our individual generosity and the depth of our pocketbook. We are free to support any initiative. In fact, there are many government initiatives that incite Canadians to volunteer and to take a part in improving the social, cultural and economic conditions of Canadians. That is a principle of our society.
However, when we approach the issue of democracy in Canada, we are in a different kind of context. Democracy is an important issue in our country. Democracy, in fact, is one of the four foundational principles of our Constitution.
The Supreme Court of Canada, in 1985, in the famous secession reference — and many honourable senators will remember the reference which was addressed to the Supreme Court of Canada in relation to the secession of Quebec — in reviewing the principles of our Constitution, the Supreme Court clearly established:
Democracy is a fundamental value in our constitutional law and political culture. While it has both an institutional and an individual aspect . . .
Later on the court continued by stating:
. . . the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated.
Finally, the court concluded:
. . . this Court has interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters . . .
Democracy is a fundamental principle. When we want to look at this bill and various other bills that have been introduced in the Canadian Parliament in the last eight years, there have been many bills introduced that have impacted the exercise of the democratic principle. Some of those bills, of course, were related to the limit imposed on contributions to various parties.
The Supreme Court of Canada reviewed those limits in a famous case — I am sure senators on both sides will remember it — Attorney General of Canada v. Stephen Joseph Harper, in 2004. It was an important, seminal decision of the Supreme Court in relation to the principles established in limiting the contributions to parties or third-party groups. The Supreme Court of Canada stated the following in terms of limits to contributions, that imposing limits to contribution:
. . . infringe the right to freedom of political expression guaranteed by s. 2(b) of the Charter . . .
. . . limits, however, must be carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to the voter . . .
In other words, the court stated repeatedly that:
. . . liberal democracy demands the free expression of political opinion, and affirmed that political speech lies at the core of the Canadian Charter of Rights and Freedoms' guarantee of free expression. It has held that the freedom of expression includes the right to attempt to persuade through peaceful interchange. And it has observed that the electoral process is the primary means by which the average citizen participates in the public discourse that shapes our polity. The question now before us is whether these high aspirations are fulfilled by a law that effectively denies the right of an ordinary citizen to give meaningful and effective expression to her political views during a federal election campaign.
In other words, imposing limits to contributions is an infringement on the freedom of expression guaranteed by the Charter of Rights and Freedoms.
Then the question is this: Are those limits able to meet the test of section 1 of the Charter? In other words, are those limits demonstrably justified in a free and democratic society?
Since the court has already recognized that imposing limits is a violation of the freedom of expression, then the question is, essentially, are those limits demonstrably justified in a free and democratic society?
In other words, in order to look into the jurisprudence and the way that the Canadian Parliament has dealt with this issue, I went back again to the decision of the Supreme Court in the Harper case. The court was clear about the principle that must be followed when one is faced with an additional limit to that freedom of expression guaranteed by the Charter of Rights and Freedoms. There is no doubt in my mind that Bill C-13, in Part 18, imposes an additional limit to the freedom of expression, as guaranteed by the Charter.
In fact, the court, as honourable senators will remember clearly, when it is faced with a limit or an infringement on the Charter, applies the Oakes test. Those are the three questions that the courts want to check to meet the test if it is demonstrably justified in a free and democratic society.
The court states that the first question to be asked is whether it is desirable to state the purpose of the limiting provision as precisely and specifically as possible so as to provide a clear framework for evaluating its importance and the precision with which the means have been drafted to fulfil that objective.
That question has been established in a famous case that some honourable senators will know, the Thompson Newspapers case, which was an early case when the Supreme Court of Canada had to interpret the Charter of Rights and Freedoms once it was adopted in 1982.
In other words, the first question is this: What is the purpose of the legislation? How can we circumscribe that purpose?
In order to answer that first question, I went back to the statement made by the various government representatives who introduced the legislation in the House of Commons — because that type of legislation was always introduced first in the House of Commons — by the Prime Minister of Canada on February 11, 2003. That is when the first bills were introduced to exclude financing by companies and big unions and to establish public financing. That was done in 2003.
What was the purpose of the government or the principles underlying those pieces of legislation when they were first introduced in 2003? The then Prime Minister stated:
. . . a bill that will change the way politics is done in this country, a bill that will address the perception that money talks, that big companies and big unions have too much influence on politics, a bill that will reduce cynicism about politics and politicians, a bill that is tough but fair.
When one looks into the operation of the bill at that time, it was a balancing bill. In one way, the bill imposed a prohibition on corporate and union financing, limiting it to only $1,000 per association, which was minimal, and for that limit and the additional limit of $10,000 on individual contributions, the other plateau of the scale was to establish public financing. In other words, the prohibition or the violation of the freedom of expression was compensated by public financing in order to achieve the objective of the bill, which was to prevent "money talks," or that big companies and unions would have too much influence on politics. In other words, there was a balancing initiative there.
Then one looks into the aim of the then President of the Treasury Board when introducing Bill C-2 All honourable senators will remember that bill, the Federal Accountability Act, and I am looking at the Honourable Senator Oliver, who was the sponsor of that bill in the Senate. I went back to what the then President of the Treasury Board, the Honourable John Baird, stated in the House of Commons on April 25, 2006 to circumscribe the objective of the then Bill C-2:
There are a lot of methods about election financing. We believe that money should not have the ear of government, and the federal accountability act will help take government out of the hands of the big corporations and the big unions and give it back to ordinary Canadians. Our act will limit donations to $1,000 a year. It will ban contributions by corporations, unions and organizations.
I believe the primary concern of our debate on this subject should be what we can do to increase the transparency of the political process so that Canadians can feel more confident in the integrity of our democratic system.
In other words, it was essentially mutatis mutandis, the same kind of principle to avoid creating the perception that big corporations and unions have a say in the public affairs of Parliament and of political parties. That bill, in my opinion, did not raise the fundamental issue.
The problem with Bill C-13 is that it removes from the compensation one essential element, the public contribution to political parties. I go back to the House of Commons debate when the Honourable Ted Menzies, on October 5, 2011, two months ago, introduced the bill to try to circumscribe the objective of the act. He said:
Finally, it would respect taxpayers by: phasing out the direct subsidy for political parties . . .
It was shortly stated, but not much in terms of the objectives of the bill was stated in the House of Commons.
In fact, it was in the Senate that the intention of the act seemed to be more clearly stated when our colleague Senator Gerstein spoke on November 24, 2011. Senator Gerstein will certainly allow me to quote from his speech, and I believe he read from a written speech, as I was listening to him carefully. He said the following:
The principle is no Canadian should ever be compelled to donate to a party whose policies are not in their interest, and no Canadian should be compelled to donate to a party whose principles they do not share.
In other words, honourable senators, the reasoning for Bill C-13 is not directly linked with the original objectives, namely, to prohibit corporate and union donations, any more than it is linked to the compensation for those prohibitions by a public subsidy. There is not a direct link between the two.
The principle or the objective of transparency that was at the beginning of all those initiatives eight years ago is difficult to follow because, if you are trying to establish the principle that Canadians have to trust their political system, when you look at how the prohibition functions in the provinces, you get a very different picture than you do from the limits we have at the federal level.
In British Columbia, Saskatchewan, Newfoundland and Labrador and Prince Edward Island, there are no limits, and corporate and union donations are allowed. In other words, there are four provinces where there is no such bill as the prohibition that we have at the federal level.
Alberta, for instance, allows corporate and union donations, and there is a cap of $20,000 per year for contributions per citizen and $30,000 in an election year. We are far away from the $1,000 per citizen.
In New Brunswick, it is $6,000 for each party. As I understand, there are three parties in the New Brunswick legislature, so that means Canadian citizens or corporations and unions are allowed to donate $18,000 to the political process in New Brunswick.
In Ontario, it is $15,500, plus corporate and union donations are allowed.
In Nova Scotia it is $5,000 for each party, but there are no corporate and union donations.
In Quebec, there are no corporate and union donations. It has been brought back to $1,000, but for each party. If you check with the director of elections in Quebec, there are 14 registered parties, so that means a citizen could give $14,000 in total to all the parties. We are far away from $1,000 for one single citizen.
In Manitoba, there are no corporate or union contributions, and it is $3,000 per year per citizen.
In other words, in terms of the Canadian reality, at the federal level, we are in a world of its own.
It has nothing to compare with the Westminster style of democracy. In the U.K., for instance, there are no limits on the amount of donations that political parties can receive, and corporations are allowed. In Australia, all political donations come from big corporations. In New Zealand, there is no prohibition placed on who can contribute to political parties.
In Germany, there are no limits on private or corporate contributions. In the Scandinavian countries — we always think Scandinavia is the best model for us — there is no limit in Denmark, Norway or Sweden.
In Switzerland, the model of democracy, there are also no limits.
There are limits in France, however. The limit for individual contribution is 4,600 euros and, because there are no corporate or trade union donations, there is compensation through public funding, the same principle we originally had.
I am not talking about the United States, of course, because we all know there was a famous case in the Supreme Court of the United States last year, in 2010, Citizens United v. Federal Election Commission, whereby the Supreme Court in the United States and its majority held that corporate financing was allowed. Honourable senators will all remember the impact it had.
I am not suggesting here that a corporate or union ban is unconstitutional. That is not at all what I am alleging here. In the Harper case, the court has recognized that those limits could exist and are constitutional.
The principle is that the limits we have placed at $1,000 per citizen at the federal level, with no compensation for unions or corporations or any other public money, in my opinion, goes overboard and could be challenged in court. As I say, the political reality in our country does not sustain a principle that is so stringent that, in fact, the limits imposed would violate the freedom of expression in section 2 of the Charter and cannot be saved under section 1 of the Charter. We cannot demonstrably justify in a free and democratic society of any OECD country or any other province that those limits are essential to maintain a credible political party system.
I feel, honourable senators, that it is our duty to reflect on that when we vote on this "well-intentioned" legislation. I do not doubt the objective that Senator Gerstein expressed on behalf of the government, but there is an impact that could open a challenge. I would suggest that we consider this before voting for this bill which would remove the balance of the original bill that was saved by section 1 of the Charter, to see if it could survive the test.