April 14, 2004

Submission of the Communist Party to the Standing Committee on Procedure and House Affairs

Dear Mr. Chairman,
Members of the Committee

On behalf of the Central Executive of the Communist Party, I would like to thank the Standing Committee for providing us an opportunity to express our views and concerns about Bill C-3. We understand that some members wanted to proceed immediately to clause-by-clause debate, without first receiving any witnesses. We appreciate the desire of the government and of this Committee to expedite consideration of this Bill due to the deadlines imposed by the Supreme Court ruling of June 28, 2003, and of the politics of the moment.

Our party is also – understandably – anxious to see this unconstitutional situation, arising from the 50-candidate rule, changed as quickly as possible. As members of the Committee are aware, we have been fighting to strike this and other discriminatory, undemocratic sections from the Elections Act for over 10 years now.

However it is wrong, in our opinion, for this Committee to proceed without providing an opportunity for all parties to express their views on the amendments. This is especially so with respect to newer and smaller political parties – those most immediately and directly affected by the proposed changes.

This is not standard, ‘everyday’ legislation; this is legislation which amends the Canada Elections Act – one of the most fundamental laws of Canada – and there is a certain irony that changes intended to make the electoral process more open and accessible, changes which smaller parties (in particular) have long advocated, and changes the result of which these same smaller parties will be most affected, are being considered without soliciting their views and input. This is, in our view, another reflection of the arrogance of the large established parties in this House which – in the main – seem to consider the democratic process as a private domain.

The introduction of C-3 marks a moment of legal and parliamentary history in our country. Never before has a single court challenge resulted in legislative action not once, not twice, but in fact on three separate occasions to amend a standing law. As you will recall, C-2 (2000) amended the CEA to (among other things) remove the unconstitutional and quite draconian seizure of party assets for failure to field 50 candidates in a general election, and provided for the full refund of candidates’ deposits, both arising from the original Molloy decision; C-9 (2001) reduced the threshold from 50 to 12 candidates for the party identifier to appear on the ballot, arising from the Ontario Court of Appeal ruling; and now C-3, which scraps the 50-candidate rule altogether for party registration, arising from judgement last June of the Supreme Court of Canada

The Communist Party is proud of the part it has played in this history-making process; however it was not a development of our choosing. It came about, in the first place, through by the reckless, anti-democratic actions of the previous Mulroney Conservative government, and second, because of the stubborn refusal of the current ruling Liberal government to ‘do the right thing’ – to amend the legislation and remove the restrictive and discriminatory aspects in the Act after the Ontario Superior Court judgement of Justice Anne Molloy declared these sections unconstitutional.

How much time and resources have been expended – including the time of this Committee – on these matters? How many dollars of public funds have been wasted on this litigation? This Committee, this House, this government all need to reflect on this carefully.

And yet, after all that, the current government introduced and passed legislation – in the form of C-24 – which directly contradicts to ruling of the Supreme Court in the Figueroa case, by granting benefits to some parties while withholding them from other, smaller ones, in the form of a 2% threshold to receive party financing, an action for which the government has yet to provide a single legitimate explanation or justification. As Karl Marx once observed – ‘History repeats itself, first as tragedy, and then as farce’…

When our Party appeared before this Committee last year, we warned that this particularly odious and discriminatory aspect of C-24 would be challenged, and challenged successfully. On this occasion, we would like to inform the Committee that our Party, the Green Party of Canada, and the Marijuana Party have jointly agreed to launch a Charter challenge to this discriminatory 2% threshold. The other smaller parties are now considering, and will likely join in this challenge.

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Concerning the specifics of C-3

The Communist Party is satisfied that most of the provisions of the proposed Act are consistent with the Supreme Court decision, and with generally accepted precepts of democratic process and practice; however we do have concerns on some specific aspects of the Bill.

1. Concerning the requirement for 250 members – As you know, the present membership requirement for party registration is 100; the Act proposes raising this minimum to 250. We oppose this increase, considering the current requirement sufficient to show a minimum level of membership support and involvement. We would remind the Committee that although this change seems quite inconsequential from the perspective of the large, established parties, this requirement – taken together with the proposal that it must be repeated every three years – can be quite onerous on new and/or smaller parties; parties which, by definition, lack the resources and apparatus of the larger parties.

We note with some alarm the suggestion from certain Committee members that this requirement be further increased – no doubt with the intention of constructing a larger obstacle to the registration of political parties. The Committee would be well advised to take the comments of Mr. Stephen Zaluski, Senior Counsel for Legislation and House Planning from the Privy Council Office, to heart, when he told the Committee on February 24, 2004:
“The thrust of the reasons of the court is clear that the more requirements you impose in terms of size, in terms of candidates, in terms of any range of criteria, the more you're pushing the envelope in charter returns. And so it's certainly true that there's no magic to 250 but the more you increase it, the more you're limiting your room to manoeuvre and setting yourself up for a more difficult charter defence when it comes.”

Rest assured that if this Committee attempts to use this provision, or any other criteria or threshold, with the express purpose of unfairly and arbitrarily respecting access to political participation in this country, it would face successful after successful legal challenge.

2. Concerning Section 22, dealing with amendments to Section 501 of the Act – We wish to express our serious concern with respect to the penalty provisions for failure to comply with certain requirements under Section 501, including the de-registration of the party and liquidation of its party assets.

On September 27, 1993, our Party was deregistered for failing to field 50 candidates in the general election held that year. During the subsequent 6-9 month period, we were forced to liquidate all of our Party assets and return the balance to Revenue Canada. Subsequently, of course, the courts struck down the seizure of party assets provision and now, finally, the 50-candidate rule itself. The point here however is that, based on our own near-death experience, we must stress to the Committee that the de-registration /liquidation process is an extremely harsh penalty to impose on any party, regardless of its size – but especially on a small party. It is an onerous sanction from which most parties would not recover.

It is an elemental principle of justice that the punishment must fit the crime. Certainly, if an entity consciously and purposely gains registered party status with the intent of using that registration to engage in fraudulent activities at the expense of the public purse, and at the expense of the integrity of the democratic process, then such action deserves immediate deregistration and the liquidation of assets. There is no dispute here.

However the Act, as presently proposed under Section 501(3), provides far too much latitude for interpretation by the Chief Electoral Officer to declare a party in non-compliance and to order its deregistration and the liquidation of its assets. Subsection (f) for instance states that one of grounds shall be “providing an electoral campaign return… that is incomplete.” Not too long ago, the press was full of reports of the somewhat incomplete reporting of the business dealings of a certain Montreal-based company with the federal government, yet throughout this entire controversy there was never any consideration of possible sanctions which should or could be applied against any of the principals involved in this affair.

Our Party – and we presume all register political parties – makes a conscious effort to comply with all reporting responsibilities required of us under the Act. However, we have made mistakes in the past, and will no doubt make mistakes as well in the future, as will all other parties. Should a federal party be liable to face deregistration and the seizure of its assets for such violations? We believe that this is an extremely dangerous provision which could be subject to abuse at some future date.

We would therefore recommend that this section be redrafted to make more explicit the application of such penalties as deregistration and the seizure of party assets only in those cases where there has been substantiation of fraudulent intent.

3. Concerning the factors listed in Section 23, dealing with Section 521 of the Act – Our Party is extremely concerned about this section, specifically the proposed amendment to 521.(5), dealing with factors that the court may take into consideration in determining whether or not a party has “as one of its fundamental purposes, participating in public affairs by endorsing one or more of its members as candidates”.

We consider that this entire section is problematic, but we specifically object to subsection (b) which directs the court to review – and presumably pass judgement – on the “political program… policy statements”, etc. of parties. We are concerned with the vagueness of this reference, the latitude given the courts in interpreting its application, and the potential for abuse.

The annals of recent history are replete with examples of governments harassing, outlawing and otherwise persecuting Communist parties and other revolutionary organizations on the grounds that these organizations advocate the revolutionary transformation of society, and then interpolating that such advocacy is incompatible with the struggle for ‘democratic’ change through the ballot box. Throughout our 83-year history, our own party has been so victimized by Canadian governments and courts on more than one occasion.

We therefore recommend that subsection (b) be removed from the draft legislation. The other subsections provide more than sufficient grounds for a court to determine whether or not a party is complying the fundamental purposes of a party as detailed under the Act.

The Communist Party also strenuously objects to the reference contained in subsection (c) that implies “public statements in support of another political party or the candidate of another political party” constitute one of the indications of failure to comply with a party’s “fundamental purposes” under the Act.

How will the courts interpret this reference? Does this mean that political parties are proscribed from giving qualified endorsement or support to the candidate(s) of another party or parties in a given election, if that party is not contesting in the riding(s) concerned? Would a party be jeopardizing its registered status were it to make such a public declaration of endorsement?

Throughout the entire history of elections in this country, political parties have, from time to time, given conditional support to other candidates and/or parties in those ridings where the parties in question were not fielding candidates in a particular by-election or general election. They have done so not for reasons of self-interest, but rather out of consideration for the best interests of the country and its peoples – from the point of view of that party – at a given political conjuncture.

We find it quite unimaginable that this Committee, or the House as a whole, would invoke such a sanction on parties, as this would constitute a grave violation of elemental democratic theory and practice, not only in Canada but the world over. And yet this is precisely what subsection (c) directs the courts to consider as a ground for non-compliance with the fundamental purposes.

We therefore recommend that subsection (c) be deleted from the draft legislation.

4. Concerning the transitional provisions – According to the proposed Act, the provisions would not come into force until some time after its proclamation, allowing time for Elections Canada to prepare for the implementation of the new regulations. While we appreciate the reasons for such provisions, we wish to convey our deep disappointment that these changes will likely not be implemented prior to the next general election.

This will effectively result in the 50-candidate rule, the constitutionality of which was initially challenged prior to the 1993 elections, being in place for four general elections – a situation which we consider deplorable and for which we hold the governing party in this House primarily responsible.

Thank you for your attention.

© 2002 Communist Party of Canada