At the time this article was
written Pierre Lortie was Chairman of the Royal Commission on Electoral Reform
The Royal Commission on Electoral
Reform and Party Financing was established by the Government of Canada in
November 1989. Its mandate was to inquire and report on the appropriate
principles, processes and rules that should govern the election of members of
the House of Commons and the financing of political parties and candidates
during election campaigns. Pierre Lortie was Chairman of the Royal Commission.
This article is based on his testimony to the House of Commons Special
Committee on Electoral Reform on March 18, 1992.
The Canada Elections Act is one of
the few acts of Parliament that is read and used by large numbers of Canadians.
During elections, thousands of temporary election officials and volunteers —
about 650,000 — must be able to understand this law. It affects what they do in
the context of registering voters, administering the vote and conducting
One message delivered loud and
clear throughout our mandate was the abysmal failure of the current Act to meet
this test. Proceeding with further amendments to this law would only compound a
problem that is already perceived to be, and is, very acute.
Canadians want a law written in
language that is clear and explicit and that can be understood and adhered to
without recourse to expert legal advice. Given that the strength of our
electoral democracy depends on the volunteer efforts of thousands of Canadians,
Parliament owes it to them that a new Canada Elections Act be made as
accessible as possible.
The Canada Elections Act
furthermore is a pre--Charter statute. Yet it encompasses the most fundamental
of the Charter's democratic rights. The present electoral law does not secure
the rights of Canadians under the Charter of Rights and Freedoms. It has been
subject to successful Charter challenges. Without change, more challenges can
be expected in the midst of the next election. The process for registering
voters and the voting process, for instance, disfranchise voters who should not
be legally or administratively disfranchised.
The law, moreover, is not enforced effectively
and will not be so until administrative infractions are decriminalized and a
process of administrative adjudication is established. In addition, the
equality of Canadians is not sufficiently promoted by the present system.
The Canada Elections Act is a
statute frozen in time. It ignores the major technological, sociological and
political changes that have taken place over the past 20 years.
Finally, but most importantly, the
present system has significant shortcomings in establishing the basic fairness
that Canadians demand and have every right to expect in their electoral
Our commission consulted widely
with Canadians generally, members of the House of Commons and with the
experienced practitioners in election administration, political parties and the
media. A set of fundamental principles for electoral reform emerged from these
consultations. These objectives are based on the central values that Canadians
hold with respect to our electoral democracy.
These principles are not motherhood
statements. Anyone who followed our hearings will know that Canadians believe
strongly in their democratic right to vote and to be candidates, and they
insist that equality, fairness, and integrity govern the electoral process.
These values are part of the Canadian political heritage; they also reflect the
strong attachment of Canadians to the values explicitly and implicitly
contained in the Charter. The electoral process belongs to Canadians, and they
expect it to reflect their values.
The first principle that has guided
us is the need to secure the democratic rights of voters. Securing that right
is the most essential characteristic of a democracy. Our record on this score
leaves no place for complacency. With an average voter turn--out in federal
elections of about 73%, we fare better than the United States, but worse than
27 other democracies. Moreover and more troubling, Canada's turn--out rate is
slipping further behind the international average. We must not accept this
situation, particularly when there are many ways at our disposal to correct
this disquieting evolution.
The right to vote must be
established in the electoral law in ways that are consistent with the letter
and the spirit of the Charter, which guarantees this most fundamental democratic
right. Unjustified exclusions must be removed. Only those limitations that are
demonstrably justified in a free and democratic society can be accepted.
The process of registering to vote
must not disenfranchise voters on administrative grounds or because of
administrative shortcomings. Our enumeration system is quite comprehensive;
however, our research has shown that only about 80% to 85% of eligible
Canadians in our large metropolitan areas are registered. We need to reconsider
procedures for enumeration as well as revision. For instance, it has been noted
that turn--out in jurisdictions that allow voting day registration is increased
by up to 10%. Moreover, the new Canada Elections Act should recognize the fact
that new technologies can improve the registration process and the new act must
allow for closer co--operation between different levels of government in order
to eliminate duplication and reduce total costs to Canadian taxpayers.
Voting must be facilitated by
changes to absentee voting and special voting procedures through introduction
in federal legislation of the concept of mobile polls and greater
responsiveness to the special needs of persons with physical and other
These are practical matters, and
our recommendations offer practical solutions, which have been shown to work
well in Canada. Our approach was to recommend procedures that are
voter--friendly. The integrity of the vote must be ensured, to be sure, but
practices elsewhere in Canada and abroad make it very clear that a much more
voter--friendly orientation should be provided in the Elections Act to guide
election officials in delivering what is the most basic public service in a
democratic political system.
The second principle that has
guided us is the need to advance access to elected office. The concept of
representation is at the heart of liberal democracy. Elections establish who
has a legitimate claim to political power and, in the process, a society
signals its attitude to the demands of all citizens to stand as effective
candidates, regardless of their social or economic characteristics. In this
respect, a society is explicitly representing itself. In doing so, it reveals a
great deal about its moral and ethical values.
At least three basic dimensions of
representation must be considered in a reform of our electoral system. The
first pertains to legal restrictions on access to elected office. The right to
be a candidate must be established in the Elections Act in ways that are
consistent with the letter and spirit of the Charter which also sets forth this
most fundamental democratic right.
The second concerns the degree to
which citizens are able to ensure the accountability of their representatives.
Canadians are represented by individual MPs elected from geographically defined
constituencies. Our political parties have been highly competitive and as a
consequence citizens generally have been able to hold their representatives
accountable both for their individual record and for that of the parliamentary
party to which they belong. With our single--member, simple--plurality voting
system, changes in citizens' preferences are easily translated into changes in
representation. Our record is good as evidenced by an international comparison
of an index of proportionality. We rank lower than political systems using
proportional representation, but this, of course, ignores the advantages of
responsiveness and accountability inherent in our constituency system. In this
respect, then, the performance of our electoral system combined with our
convention of "responsible government" has been quite effective. The
third issue of "representation" arises from the fact that many
Canadians do not feel that constituency or partisan representation fully
captures the current range of citizen interests. Traditionally political
parties have played a central role in ensuring representativeness in
Parliament, gradually integrating various language, ethnic and religious groups
into Canadian politics through the recruitment of standard--bearers. Their
success in achieving a presence in Parliament is viewed as symbolic of the
power these social groups have achieved within Canadian society.
In recent years, several other
groups have laid claim to fair representation. Increasing demands for greater
equality are a case in point. It is strongly felt that neither constituency nor
partisan representation fully captures the full range of citizens' interests.
The Special Joint Committee on a Renewed Canada addressed this very point in
its report as one of the important "challenges of inclusion".
The evidence gathered by and for
the commission leads uniformity to one conclusion: measures are necessary to
ensure that the equal right of citizens to candidacy is enhanced effectively.
This requires that the electoral law seek to achieve a reasonable degree of
fairness in the competition for nomination by a political party -- the primary
route to elected office. Since all citizens are not equal in their personal
circumstances, and some have faced systemic barriers in securing their rights,
equity and fairness demand that the law provide more than a simple statement of
The key recommendations in this
extending to all employees the right to an unpaid leave of absence
during the election period to contest a nomination and seek office;
setting limits on spending by nomination contestants;
providing tax credits for contributions to nomination contestants
providing tax deductions for the extra expenses incurred by some groups
of candidates, including women and persons with disabilities.
These recommendations are in
keeping with Canadian traditions and our heritage of concern for fairness. They
address specifically the shortcomings that have been identified in ways that
are responsive to legitimate criticisms, yet respect the fundamental notion of
representative governments and the ability of parties and voters to choose
representatives freely and hold them accountable.
The third principle pertains to the
need to promote the equality and efficacy of the vote. Our electoral system is
meant to secure the effective representation of citizens in the House of
Commons, both as members of provincial and territorial communities within our
federation and as members of local communities. Provincial communities are
meant to be represented in the Commons proportionate to their population. Local
communities are meant to be represented on the basis of their population, but
in ways that also acknowledge communities of interest.
The constitutional principle of representation
governing the allocation of seats to provinces, namely proportionate
representation, must be tempered in practice to ensure minimum representation
of our smallest provinces and the territories. Beyond that, however, the
constitutional equality of the vote must be secured. This is essentially a
matter of using the most appropriate formula to achieve proportionate
representation within the total number of seats in the Commons. The legitimacy
of the Commons as a national legislature requires this fundamental equality of
Drawing federal electoral
boundaries within provinces must also secure effective representation under our
Constitution. This requires, as the Supreme Court has made clear, that the
relative equality of the vote within provinces be the first and foremost
objective. Deviations from this criterion, as the Supreme Court has also made
clear, must be clearly justified. Moreover, the relative equality of the vote
is not something we should concern ourselves with only once every 15 years.
Rather, it must be made a fundamental characteristic of our system.
The present formula for allocating
seats to provinces is not related to any sound principle of representation. It
fails to give sufficient weight to the constitutional principle of
proportionate representation, and it discriminates against Alberta, British
Columbia, and Ontario.
The law governing the drawing of
electoral boundaries within provinces is unnecessarily defective in achieving
equality of the vote. Nor does it accommodate the effective representation of
aboriginal people. Their right to an equal measure of representation, while
preserving the equality of the vote for all Canadians, requires a different
approach to recognize their unique status as first peoples as well as their
geographically dispersed communities south of the 60th parallel.
The fourth principle is the need to
strengthen political parties as primary political organizations. Our tradition
of responsible parliamentary government has meant political parties are central
to our system of representative governments. Indeed, ours is a system of party
government. Our parties organize MPs into those who support or oppose the
government of the day. Our parties accordingly organize the process whereby
candidates are recruited and selected, and electoral support is mobilized on
Consequently, parties must develop
policy positions and programmes that encompass the complete range of issues
confronting modern governments. This is especially the case in a parliamentary
system, where the governing party forms the cabinet, has majority support in
the House of Commons, and is thus expected to provide leadership, make
decisions, and manage its policies and programmes.
Canadians recognize that a true
democracy under a parliamentary system of government require political parties
as primary political organizations but they are increasingly critical of the
way our national parties perform many of their essential functions. They are
particularly critical of the ways parties manage processes such as the
nomination of candidates and the selection of their leaders.
Given that parties are the primary
gate--keepers of the nomination process, and that party leadership is critical
to the effective choices of voters in indirectly selecting who will form the
federal government, the public has a legitimate interest in ensuring they
conform to and further the democratic rights of Canadians.
Our regulatory framework must not
be indifferent, let alone hostile, to the primacy of political parties. Nor can
it completely ignore the fact that although parties are private organizations,
they are also trusted with crucial public functions. Our electoral law,
accordingly, must be reformed with respect to the ways in which it relates to
the public functions and responsibilities of political parties. It must provide
a framework to ensure that parties registered under the law adhere to the
principles that protect and enhance the democratic rights of Canadians; that
registration be reasonably accessible to emerging parties; that registered
parties are able to fulfil their role in developing policy alternatives and
education of their members; and that the constituent parts of registered
parties that receive the benefit of the law are also encompassed under the law.
With respect to the registration of
parties, we acknowledge very clearly in our report that parties should set
their own rules governing selection processes to reflect and affirm the
distinct history and culture of each party and remain consistent with their
structure, internal processes, membership base, and revenue base. But these
rules should be clearly and consistently set out in party constitutions and
bylaws. Moreover, since public funds are involved in the operation of parties,
these rules must tie into overall framework of party and election financing and
financial accountability if the fairness and equity of the system is to be
We recommend that minimum standards
with respect to spending limits, financial reporting rules, and rules on the
use of the tax credit for nomination and leadership contestants be part of the
Elections Act. This will ensure fairness among the parties and the availability
of an enforcement mechanism. Parties would be free to set their own rules
within this framework, but the rules would then have the force of the election
The fifth principle is the need to
promote fairness in the electoral process. Fairness is clearly the pre--eminent
value that Canadians want expressed in our electoral law and in the electoral
processes. Canadians see fairness as the means whereby the fundamental equality
of their democratic rights is achieved. Without laws that promote fairness, we
may have a free society, but we will not have a truly democratic society.
It is absolutely essential that we
all understand that the critical importance Canadian attach to fairness is not
wishful thinking or misguided political naivety. Canadians want and expect
their elections to be competitive. They recognize that financial resources are
necessary to conduct effective campaigns, and they appreciate the openness of
competition that is secured by their right to freedom of expression.
Canadians do not accept the view
that the electoral process is akin to the economic marketplace. They reject the
model of electoral competition as in the United States where personal wealth,
or access to wealth, is a precondition of access to elected office and
effective campaigning by candidates and parties.
In numerous and concrete ways,
Canadian electoral laws have long accepted that fairness must be a central
premise of our electoral process. Our laws concerning the state's
responsibility for registering voters, the use of the independent boundaries
commissions, the provision of free broadcasting time, and among other things,
candidate and party finance have demonstrated conclusively that Canadians want,
expect, and know is possible to have fair elections.
This means that measures must be
adopted to ensure that citizens have a reasonable degree of equality in
influencing elections outcomes. We also know from our own experience, as well
as from comparative research, that measures to promote fairness do not dampen
electoral competition. In fact, the increased access does enhance competition.
As our federal, provincial and
territorial experience and that of other democracies demonstrate, fairness in
the electoral process demands, first limits on election expenditures and thus a
comprehensive definition of election expenses on the part of all election participants.
That means candidates, parties, and independent individuals and groups. Second,
it demands partial public funding of candidates and parties. Third, there must
be access to the broadcast media.
In determining the specifics of
each of these measures, of course, fairness itself must be the guiding
criterion. To the degree that this is the case, reasonable limits on rights,
such as freedom of expression, are fully justified under the Charter.
The most thorny issue here is
obviously the regulation of spending during the election campaign by
individuals and groups operating independently of parties and candidates.
Clearly, if there are no limits on independent expenditures, the spending
limits on political parties and candidates are unfair and unenforceable.
Therefore, a reasonable balance must be struck between the continuing
principles of fairness and freedom of speech.
Our proposal is based on several
criteria. First, a limit on election spending by individuals and groups, other
than candidates and parties, must still allow for permitting freedom of
Second, individuals and groups
advocating their position on an issue must be allowed to refer specifically to
candidates and parties in relation to that issue. Otherwise in the context of
an election, their freedom to express a point of view will be restricted
unduly. We must always recall that people vote for candidates, not for issues.
Third, independent individuals and
groups cannot be equated with candidates and parties. Even a costly and intrusive
regulatory system requiring individuals and organizations to register with
election authorities and report their spending and their financing sources
would not secure fairness.
Unlike parties and candidates,
individuals and groups will be able to pool their resources or split into new
groups to increase their impact or multiply the amounts they could spend. This
is supported by the U.S. experience.
We propose a limit of $1,000 for
individuals and groups operating independently and the exclusion from the
expense limits of communications by companies, union, and associations
addressed exclusively to their shareholders, employees, or members are
consistent with the Charter and meet the tests that have been set out by the
Supreme Court for determining what constitutes a reasonable and justified limit
in a free and democratic society.
The sixth principle is to ensure
public confidence in the integrity of the electoral process. This can be
secured only to the degree that the election law curtails the exercise of undue
influence through political contributions to candidates and parties; that the
election law reduces the possibility of undue manipulation of voters through
media reporting a public opinion polls; and that the election law ensures that
elections are administered, and the election law enforced, in an impartial and
Control of undue influence
requires, at a minimum, a complete, timely accessible disclosure and reporting
system respecting political finance. Transparency and public accountability for
the use of public funds are essential. Undue influence can also be controlled
through the use of public funding and political tax credits, which reduce the
need for large contributions from a few sources, and by spending limits on
candidates and parties, which reduce the requirements for seeking
Reducing the manipulation of voters
by media reporting a public opinion polls, which are claimed to be
"scientific" samplings of public opinion of election issues,
requires, at a minimum, the following measures. First, measures to ensure that
polls which are represented as such in the media actually exist and were
conducted in a manner that satisfies scientific criteria. Second, that the
public, especially election participants, have access to the date and
methodology of reported polls. And, third, that polls not be reported when
there is insufficient time to evaluate them or when their scientific validity
is inherently deficient.
Finally, if the electoral law is to
be administered and enforced in ways that enhance public confidence in the
integrity of the electoral process, the electoral machinery must be, and be
seen to be, impartial and independent. It must also be effective and efficient
in coping with the complexities of conducting elections in a very short
timeframe. Above all, moreover, the process must not place the hundreds of
candidates and thousands of volunteers who engage in the election campaign at
unnecessary risk because the law is unclear, unduly complicated or contains penalties
that do not correspond to the gravity of the numerous possibilities of
unintended or minor infractions. In particular, this means that administrative
infractions should be enforced and adjudicated as matters that are not
criminal. At the same time, those responsible for the enforcement of a law must
have the necessary capacities to uphold the law, enforce its provisions and
apply its sanctions.
Editor's Note: Following a report
of the House of Commons Special Committee on Electoral Reform in December 1992,
legislation was introduced in the House of Commons to amend the Canada
Elections Act taking into account some of the recommendations of the Royal