SELECT COMMITTEE ON
COMITÉ SPÉCIAL DES
Thursday 5 March 2009 Jeudi 5 mars 2009
The Chair (Mr. Greg Sorbara): The Chair has to remain neutral, although I will just begin by noting for the record the professional job done by my friend Mr. Kormos from Niagara Centre on the John Oakley Show this morning. Very professional.
The Chair (Mr. Greg Sorbara): The matter for the record was Mr. Kormos’s intervention yesterday at those unseemly little events around the Premier’s scrum. I think the Premier expressed publicly his appreciation for your intervention. My goodness.
The Chair (Mr. Greg Sorbara): If I can just remind the committee that we were in the process of going through a series of draft recommendations, just to recap some of the stuff that we were going to do, we’re going to get some more information on the address authority, and I think at some point perhaps invite the president of MPAC to the committee to give us a more fulsome sense of what an address authority might do before we make a final decision as to whether to include that provision in a revised statute. There are also some issues concerning the privacy commissioner, and we’re going to work on that as well.
Can I ask the clerk just to remind me where we left off on these? Oh, we were just going into those issues relating to modernizing the election financing rules. I think we had discussed electronic receipting. There was a quick nod on blackouts, but perhaps for the purposes of these deliberations, we’ll just get some more information on the record about what we’re contemplating by way of blackouts.
The issues relating to blackouts centre around the provisions that require no political advertising in the 24 hours preceding the opening of the polls. I think that most of us, until perhaps the past 10 or so years, had a pretty clear idea of what that meant, but with the advent of new technologies and new media, in recent elections there have been allegations to the Chief Electoral Officer that the blackout rules have been violated even simply, for example, on a website for a candidate with the addition of a banner that says, “Vote today,” or some other change to what one might have on an individual candidate’s website or a party’s website.
Someone who posts a new little ditty on YouTube or Facebook, whatever that is—I haven’t got my head around that whole world of social networking—I think it’s called. The proposal here, given our mandate for modernization and housecleaning, is to simply provide some clearer rules. So the notion and the proposal here is that during the blackout period there could be no paid advertising by way of newspaper advertising, radio or television advertising, but the blackout would not extend to this rather more undisciplined world of new media.
Mr. Norman W. Sterling: But what happens if somebody says something scandalous about the reputation of a candidate or the leader of a political party on this, and it has quite a wide readership and it’s done during the blackout period? Then there’s no opportunity to respond by the candidate, the leader or the party, either in print media or anything else.
Mr. Peter Kormos: —social networking are so readily co-opted and corrupted. We’ve seen it increasingly where a teen can generate a whole bunch of YouTubes that don’t appear to have their origins in a political party. I suppose any political party is capable of doing it. Blogs are just incredibly—and I do understand that libel and slander liability applies not only to the author, who is usually unidentifiable, but also to the blog sponsor and the service provider. That’s what I’m told is the state of the law. I suppose to the extent—are you excluding them because they’re ungovernable?
The Chair (Mr. Greg Sorbara): I think, in part, because they are ungovernable, and the notion is buying—the prohibition was about buying airtime, buying print. So, for example, if one has a party website, that website is paid for not in the traditional model of advertising. To try and imagine that we could govern that simply goes against where these media are going and the kind of town hall meeting style of atmosphere that’s there. My own sense is that they have little to do with the decision of the voter and that there is so much noise out there that to try and govern it would be to try and do something which is impossible anyway. But we were going to go to David Zimmer.
Mr. David Zimmer: As I understand this Internet and YouTube stuff and all of that, the fact of the matter is that all other jurisdictions have found it impossible to police the materials that get placed on it in any way. They can’t even come remotely close to it, because bloggers and all those sorts just stick stuff on. If countries like Iran and China and so on have tried, from time to time, to bring some order to that sort of Internet/blog/website stuff and have just effectively given up, that’s something we just have to live with. But I think we can continue to have rules and regulations on paid advertising, on print and television and radio—and, I suppose, even if a party wanted to pay to take out a formal ad on the Internet or something, the paid stuff. But the free-floating stuff out there? Just live with it.
Mr. Norman W. Sterling: I don’t understand why we would take it out. Why take the sanction out? It may stop somebody from doing something. By taking the sanction out, basically you’re saying it’s a free game.
Mr. Norman W. Sterling: But we have lots of laws like that, Mr. Zimmer: smoking in cars, all kinds of stuff where you’re trying to influence social behaviour. I just don’t see the big plus of doing this. I mean, it might be tidier, but who cares whether it’s untidy? All you’re doing is saying to somebody who is perhaps blatant about this, and you can catch them doing it, that you can go after them. So why not?
Mr. Peter Kormos: It’s pretty compelling, isn’t it? You talked about smoking in cars. Marijuana laws—I mean, heck. They’re virtually—well, they are—unenforceable, but for any number of reasons, if only symbolic, they’re maintained. Because if you exclude those three media, then you’re tacitly saying, “Go ahead and do it. It’s perfectly lawful and ethical and appropriate.” I’m persuaded by Mr. Sterling. Why not throw them in? You’re talking about paid political advertising, and it should be prohibited on those media as well. Again, it may not be a very strong deterrent, because people may violate the law, but if you do have somebody that you can catch, you can catch them.
Mr. Peter Kormos: No. During elections they predict outcomes in ridings—it’s a university-sponsored one. People advertise on it; they advertise their campaigns. So what we’re basically saying is that you could legitimately advertise your campaign on that website, knowing that political junkies, political enthusiasts are dialling it up three times a day. I think that’s an illustration of how you would be approving paid political advertising in that sort of medium, which attracts people who are more likely to vote. DemocraticSpace, I think, is one.
The Chair (Mr. Greg Sorbara): Larry Johnston points out, appropriately, that we’re talking about this 24-hour period. There is a blackout period on advertising, basically in the first—Larry, help me out here—about the first seven or eight days of a political campaign.
Mr. Larry Johnston: In a by-election or in a general election that’s not held on the fixed date schedule, there is a blackout period from the time the writ is dropped until the 22nd day before polling day—for political advertising purposes, not for polling purposes; just for clarity’s sake.
The Chair (Mr. Greg Sorbara): Yes. Well, the provision had its genesis in the government’s control of election dates and, frankly, the government’s ability, if it’s in control of the election date, to be first out of the gate and buy up all the best time and have an undue advantage when it comes to securing political advertising. That rule said there’s no advertising in those first few days. I don’t think we need that anymore.
Mr. Norman W. Sterling: Well, you know, I think you should talk about these things, because basically the Premier of the day in the province of Ontario still has the right to walk down the hall here and ask for an election at any point in time.
Mr. Norman W. Sterling: I’d argue you’re wrong. But even the Attorney General’s ministry, which carried the bill for the fixed election date—I asked him directly across. I said, “Notwithstanding this particular piece of legislation fixing the date, does the Premier still have the opportunity to walk down that hall today and call an election?” And he said yes, because it’s a constitutional thing, and—
The Chair (Mr. Greg Sorbara): I agree with that, as a matter of what the Constitution might say. I hold a minority view that Her Honour the Governor General ought to have said to Mr. Harper at that time, “If you want to dissolve Parliament and choose another election date, you go back to Parliament and pass a bill to do that.” But that’s a minority view.
Mr. Norman W. Sterling: Yes, but you don’t have—you know, you were very powerful at one time in this government. Even Dalton McGuinty doesn’t have that power. I mean, that’s what our Constitution says. Larry? Ask Mr. Johnston.
Mr. Larry Johnston: Well, it’s more that the prerogative of the Lieutenant Governor cannot be prescribed by the legislation. It can’t take away the right of the Lieutenant Governor to dissolve Parliament, particularly if a leader with a majority situation went to the Lieutenant Governor and said, “I don’t wish to govern anymore.”
Mr. Peter Kormos: This is being raised for the first time now. I think it’s interesting, because the power of the government to perform the misdeeds that you spoke of exists very much in by-elections. I’d like to have my caucus colleagues look at it, I guess.
The Chair (Mr. Greg Sorbara): As a practical matter, I’ve been fairly involved in a number of by-elections over the years, whether from the opposition side or from the government side. I have never seen an abuse by government in respect of advertising in a by-election, so I don’t think there’s any need there for the provision. But I respect your desire to take that back to your caucus.
Within our own caucus there was some hesitation here. One or two people thought it was silly. I don’t think it’s silly at all, and I think there is frankly an opportunity for political parties to do some of their fundraising in that way. I don’t think there could be allegations that the donor was trying to exact undue influence on a party or a government at that time, at least not personally. I take it that both of the other parties agree that we could perhaps mirror the federal provisions there.
The Chair (Mr. Greg Sorbara): Frankly, Larry has just shown me the federal provision. I’m not sure that an unlimited donation is entirely appropriate, because there are—the example that you provide is not going to happen, but one could imagine that someone leaves a very large sum of money to a political party. Peter, what’s your view on this?
Mr. Peter Kormos: Again, we discussed that. I actually questioned my caucus colleagues and some of our party brass, “You mean, no limit? No limit?” And they said yes. You don’t want to make this stuff too complicated. You can’t require it to be put into a trust, because there’s a law that applies to perpetuity, right? You can’t have a perpetual trust; is that right? If you could, you could tell a party, “No, any amount in excess of $200,000 has to be put into trust and you could only utilize the income from that trust,” for instance. I suspect that at some point you’ve have to wind that up. I don’t know how to accommodate a maximum, with entitlement to the excess. So if it’s a maximum, how would you set the maximum? What are you proposing? That it be $100,000, $200,000, $1 million? A million doesn’t go that far anymore.
The Chair (Mr. Greg Sorbara): What I was actually thinking of when we originally started talking about this was the same maximum donations that can be given by any other donor, so I think right now that’s about $10,000 annually. I’ll go down Mr. Sterling’s road a little bit on the so-called Conrad Black example. The idea—
The Chair (Mr. Greg Sorbara): I’ve had a lot to do with this whole business of political donations and political fundraising. Obviously, the issue is that you ought not to gain any benefit from your donation, and I quipped that certainly the deceased is not going to benefit from the donation. However, large estates that could perhaps leave a million dollars to the New Democratic Party of Ontario have executors and people who are running businesses out of which that gift is generated, and they might often just say, “By the way, your party is pretty much living on that testamentary gift that this estate provided for you,” and while the deceased is gone, the enterprises out of which the deceased earned the capacity to give a million dollars to the New Democratic Party continues to exist. So my predisposition at this point is to set a maximum, perhaps not the maximum of an inter vivos gift but to have a maximum of some sort or other.
The Chair (Mr. Greg Sorbara): I know even less than Larry, and that’s generally the case. I haven’t done any study on it. I don’t have any information on whether it is a viable form of fundraising yet. However, if you look at the demographics over the course of the next 20 years, it could represent a small increment in donations.
Mr. Peter Kormos: For example, the NDP did receive a sizable donation by way of a will, but it wasn’t a political donation. The money had to be used for community social purposes. I think it was last year or two years ago, half a million to a couple of various community groups. That’s a totally different thing.
Mr. David Zimmer: The reality here is, and I spoke strongly in favour of this, that there are many, many people in the riding associations, long-time Liberals, Conservatives and NDP, who have been active members of the riding associations for 20, 25 years. Their whole sort of social lives are built around that. I often get inquiries from these people, as they’re getting into their very senior years, that they’d like to leave something to the party. They’re talking about modest amounts. I expect it might be a couple of thousand dollars or $5,000 max or something like that, but they’ve put in these years and years and they’re the stalwarts of the party. They keep those riding associations going from year to year in good times and bad, and I think that’s the target we’re after.
Mr. Norman W. Sterling: Perhaps Mr. Johnston can find out how other jurisdictions who have this ability other than Canada deal with it. My inclination would be to say that it can’t be more than 20 times the individual annual or whatever, some ratio, so that the provision would hold up for a long, long period of time. Because you can’t predict. If a 28-year-old draws his will today and dies 50 years from now, you don’t know what’s going to be. That’s how I would do it.
The Chair (Mr. Greg Sorbara): My inclination is to use the existing maximum. So an individual in any given year can give I think it’s $10,800 to a party and a certain amount to up to five riding associations. I think the all-in amount is around $20,000, and my inclination is to say that should be the maximum from a testamentary gift and to allow that gift to continue out of the estate of the deceased for a period of five or 10 years or something like that.
Mr. Peter Kormos: What’s the impact of that that will in fact—here’s $100,000. Does the Election Act interfere with the will of the deceased or does it interfere with how the political party that gets the gift deals with the money?
The Chair (Mr. Greg Sorbara): I think the answer to that is that the Election Act would define the ability for the will to be enforced and that if, for example, there was a maximum of $100,000 but the will provided for $1,000,000, the $900,000 would have to be returned to the executors of the estate and dealt with as part of the residuary of the estate.
The Chair (Mr. Greg Sorbara): Okay. Let’s go on to section VI: Improving access for persons with disabilities—certain proposed legislative changes and certain recommendations which would be outside the bounds of a new statute. The first is persons with disabilities: Providing the Chief Electoral Officer with the ability to use new and emerging technologies to assist persons with disabilities in voting in both general elections and by-elections. Any issues?
Mr. Norman W. Sterling: I had a brief discussion with the Chief Electoral Officer about this. I asked him where this was to be used, and he said, “We’re trying this out in the by-election”—that’s taking place today. I said, “Fine. How much does it cost per unit?” He said, “They’re doing it free.” They’re doing it free in the by-election because they hope to get this—
Mr. Norman W. Sterling: Yes, they want a contract. So my understanding—the only evidence I have with regard to some of this voting technique is that they did this in the province of New Brunswick. I’m not sure how broadly it was available, but there were four voters in all of the province who used the technology. You still have to have some kind of basis in terms of introducing the technology in order to maintain the integrity of the process. There still has to be some financial responsibility here. My only concern is, how do you not have this in every polling station across the province of Ontario? And if that costs, and if you find out that in 98% of the polls the machines are never used, how do you deal with that? So I thought it would be best to discuss this with the Chief Electoral Officer next week or a couple of weeks from now, after he’s had some experience up in Haliburton with this technology, so we can ask him, is this going to be necessary in our report? He told me he thought it would be applied and provided only at the returning office, one per riding. That’s 107 or 127 places in the future. I don’t know whether or not you can do that.
Mr. Peter Kormos: Seriously. That’s not access, in terms of the broad Liberal concept of access. We support the proposition. It would be interesting to make sure that the Chief Electoral Officer knows it should consult with leadership in the various communities that advocate for the disabled, as I suspect it would; it shouldn’t be doing this unilaterally. But this doesn’t mean excluding section 55, voting by friend of the elector.
I want, first of all, to answer Mr. Sterling’s issue: Does that mean very expensive technologies in every polling place? The fact is that, like all organizations, Elections Ontario is subject to a budget approved by the Board of Internal Economy of this Parliament. So it is the constraints on budget that are one of the limiting factors to progress in a wide variety of areas, particularly those associated with technology. This provision simply acknowledges that there will be emerging technologies and one would not have to go back to the act to permit something that is other than “friend of the elector” or a simple X on a ballot.
Mr. Peter Kormos: But people have a private profit interest. Look at some of the incredible public expenditures, once again, in computer software and so on. We agree with the proposition. I understand that it’s going to be driven, and then the taxpayer is going to be used as research and development for any number of operations, isn’t it?
Mr. David Zimmer: Going back to the fundamental principles, isn’t the whole idea of a lot of the stuff that we’re doing to delegate the responsibility for this sort of stuff to the CEO and let him figure it out? All we’re saying, as a committee or in the report, is, “Enhance access for people with disabilities,” and then leave it up to the CEO to figure it out.
Mr. Peter Kormos: We’re looking at the totality, because we’re also considering mail-in ballots. If the mail-in ballots were available to anybody who applied for one, without having to need a test like being in the military or testifying that you’re out of town, then persons with disabilities who would find it difficult in a traditional voting booth could well elect to do that.
The Chair (Mr. Greg Sorbara): That’s an interesting point. I just want to get back to the business of the “friend of the elector” provision. If you speak to people in the disabled community, they may make the argument that they want to have the same secrecy and privacy as any other citizen, and “friend of the elector” doesn’t achieve that. It’s going to stay in the statute and we’re going to continue to use it. But Mr. Zimmer points out that we’re simply trying to acknowledge in the statute that as technologies emerge, they can be used.
I understand the whole notion of trying out technologies free of charge. I don’t think, though, given the responsibility to live within a budget, that we are going to see every polling place provided with very sophisticated technologies that are virtually unused.
Mr. Norman W. Sterling: My only observation is that under the past Chief Electoral Officer, the budget for the election office exploded. If you feel like giving a free hand—because I have not seen a Board of Internal Economy say to any legislative officer, which the Chief Electoral Officer is, “We’re going to limit you.” They will always have a good reason as to why to expand their budgets, and this stuff is not inexpensive. I’m just saying that if you give a legislative officer a lot of leash, they’ll take it. That’s my experience over a long period of time. Once you say to them, “You have more jurisdiction, more authority to spend money,” they’ll be at the door of the Board of Internal Economy for it. I just think you have to be somewhat reasonable in what you do, especially in these times when we’re going to have a $13-billion deficit next year.
The Chair (Mr. Greg Sorbara): One of the fascinating things about these technologies is the extent to which they become eminently affordable so very quickly. For example, 10 years ago, could one have imagined the touch screen of an iPhone? Now they cost $200 and everybody’s got them.
Mr. Norman W. Sterling: Now that this experiment is going on this very day, I think we should have a talk with the Chief Electoral Officer as to how this worked, where it would work, and is it reasonable to restrict it to one location in each riding, that kind of thing.
Number two is really a repetition of a discussion that we had about mobile polling stations, and again, reflecting the approach that we use at the federal level. I think you should raise that question on the record.
Mr. Larry Johnston: I just wondered if that also included the federal provision that allows persons with disabilities who cannot travel to the poll because of a physical disability to vote at home. They may apply for this and then election officials will bring the ballot to the home.
Mr. Norman W. Sterling: I think it should. In that way perhaps you can restrict the problem that I was identifying before, and that is that there are relatively few people that need this kind of assistance and you can bring the assistance to them rather than have it spread all over the place. The other part, too, is that I can remember my early elections where I heard about polls where there was a polling station which was up some stairs. The older people couldn’t do it and they’d come down and let the person vote on the street—not on the street, but in the yard or whatever it was. They’d bring the ballot box down and they’d put the ballot in and that would be it. But I think that we should do as the Canada Elections Act, as well as give the—I don’t know if this is included in this but it is the same topic, and that is, I believe if you have the mobile one, you can then restrict or not have certain polls, like in a long-term-care unit. You don’t have to have people sitting there for the 12½ hours. If somebody comes in after it’s gone, they can send the mobile guy back over to get that person; therefore, you can have mobile polling stations covering perhaps three or four long-term-care places in the area in one day.
Mr. Peter Kormos: Your own recommendation, number 4, allows for special mail-in ballots. But you see, this again, there’s the problem of not making it universal, because if you say, “Special mail-in ballot available to”—any number of things—“persons with disabilities,” what do they have to do? Do they have to swear that they have a disability before they get a mail-in ballot?
If I might just add, on these two issues, special mail-in ballots and mobile polls, the lead here is the federal act. Our information is that the standards under the federal act are effective and efficient as far as cost is concerned. That’s a good reason to mirror them in any event. However, I think the even more important reason to try to mirror them, or mirror them, is because, in the mind of the voter, it’s so frustrating when it comes to election day to find out that, “Oh, well, I could do that in the federal election, but I can’t do that in the provincial election.” Those are the kinds of standards. In this area, standardization is a good idea.
Mr. Peter Kormos: I understand, but you’re making people make a special application for mail-in ballots, and you’re making them fit or meet certain thresholds—military service, that’s an easy one; an affidavit to the effect that my family and I are going to Europe for that month, that’s an easy one.
Let me give an example—Rogers Cable. In my apartment here, the box keeps crashing, and it has to be rebooted. I know how to reboot it; you have to crawl in behind the TV with the mass of wires, but they can do it from Rogers. So I call them and they say, “Well, sir, just don’t worry, all you do is unplug your box, wait 30 seconds and then plug it in.” I say, “No, I’m in a body cast.”
Mr. Peter Kormos: I tell them that. “You guys can do it, because I’m in a body cast, and I’ll have your ass before the Human Rights Commission so fast your head will spin,” and then they do it. Right?
But, again, I place myself in the shoes and the mindset of the voter. The voter says, “You have the same ridings; it’s the same people who work in the elections. Why do we have two different sets of rules? Is there something magic or special about an election at the federal or provincial level?” Now, I will be chastised for bringing that suggestion forward, but we’ll see. Okay, so—
Mr. Norman W. Sterling: Mr. Johnston, as I understand it, the mail-in ballot process seems to be protected from abuse by the fact that you have to go through a two-step process. In other words, you have to make an application—
Mr. Norman W. Sterling: I guess the concern that anybody has in the voting process is that if the process is used to a much greater extent in one electoral district as opposed to all of the rest, then somebody thinks maybe there’s some integrity lost in the voting process. Perhaps you could ask the Chief Electoral Officer of Canada if there was any particular constituency or riding across Canada that seemed to have an excessive use of the mail-in ballot by the ordinary—
Mr. Larry Johnston: I can just tell you, in terms of the application, in the section “Canadian electors voting in their electoral districts,” Elections Canada says “Canadians who will be 18 years of age or older on polling day and who, during an electoral event, cannot or do not wish to vote at the ordinary or advance polls, may vote by special ballot in their own electoral districts.”
Mr. Peter Kormos: I’m going to go one further and, again, just considering this: If you’re going to professionalize the local returning officer and make it a longer-term appointment, make it a full-time job throughout the course of the months and the years, are we then going to accommodate the people—because I’ve got people, depending on the time of the election, who go to Florida; right? Snowbirds—who are leaving too soon to be able to get to an advance poll. How do we take care of the people who know they’re not going to be in the country and they’re leaving before the formal election process starts, knowing that there’s going to be an election because of fixed election dates? How do we accommodate them? Is there any way of accommodating them, people like snowbirds, for instance?
Mr. Larry Johnston: In the 39th—not the last federal election but the one before—which was in January, I believe, as it was a winter election, Elections Canada made a special effort to contact snowbirds, those who were vacationing in the United States and Mexico. They received 80,000 applications and people were able to apply online. So if they were away they could do that. I think some 30,000 actually voted as snowbirds.
The Chair (Mr. Greg Sorbara): Yes. And again, obviously, Elections Canada has experience in this area. If we can rely on that experience and mirror that experience, then I think voters will feel more comfortable.
I don’t think this is an area that is going to grow significantly in activity. Mr. Sterling and I, being of a certain age, still rely greatly on what’s called snail mail. My kids just—I mean, if it can’t be done online, why would you even bother doing it?
We did not talk about transferred polling places: transfer certificates on election day to permit persons who use wheelchairs or have other physical disabilities to vote at facilities that provide level access if, in exceptional cases, their own polling site does not provide such access.
Mr. Larry Johnston: My understanding is that this would simply change the existing provision, which allows a person to apply up to the day before polling day, to be able to extend that application to polling day.
The Chair (Mr. Greg Sorbara): Under the heading “Improving Access for Persons with Disabilities,” the recommendation is one with a number of bullet points. It really just says that the Chief Electoral Officer should continue to work closely with the disability community on developing additional services such as, and then there are a number of points. I don’t think we contemplate, here, putting anything in a statute. I think we contemplate putting something in a report, but this is something that would go out in any event.
I should point out that there was some question from my dear friend Madame Meilleur, who is the minister responsible in this area, about a hearing or consultation process on greater access for people with disabilities when it comes to the election process. My answer to her was that it is going on right now—it is part of this committee’s work—and it will continue to go on by way of a report mandate to the Chief Electoral Officer, but he would do it anyway because it’s part of the way he does business. As an entity that is subject to the laws of the province of Ontario, Elections Ontario is subject to the new disabilities act, which was passed in this Parliament some time ago.
Finally, the issue of better enforcement of the Election Act—this issue is interesting and straightforward. There are no sanctions in the current act, other than that the Chief Electoral Officer can pay a visit to the Attorney General of the province to say, “We’ve got a violation here. Do you want to do anything about it, Mr. Attorney General?”
What is contemplated here is providing for administrative penalties and fines for violations of the act. I think everyone in the room will know that there is the ability to decertify riding associations for failure to comply, and there are certain provisions that disqualify candidates. But unlike most acts that are of an enforcement nature, there is no ability to say, “You have had three notices to file your annual returns, you haven’t done that and we’re fining you $300,” or whatever. I’m wondering what this committee thinks about that, and I’m going to start with Mr. Zimmer.
Mr. David Zimmer: As you recall, the CEO spoke strongly about this, and essentially what he said, because the only recourse for any offence, including all the minor offences, was to go to the Attorney General, and that was such a cumbersome, heavy-handed, nuclear-weapon approach—
Mr. David Zimmer: Yes, the politicians. So for this administrative stuff, he wanted the ability to step in quickly, bring the hammer down and say, “Do this or it’s going to cost you a thousand bucks” or something to snap the thing along. It just makes sense.
Mr. Peter Kormos: The observation was this: People who are doing this work—our local financial officers, the tabulators—are volunteers. They’re working out of little basement offices, their dens or what have you. There was concern about the fact that there isn’t a clear distinction between overt criminal behaviour or intentional behaviour versus inadvertent behaviour, and the concern that inadvertent behaviour, where there is no evil motive—right?—or intention or goal, shouldn’t be punished. To have administrative fines means there’s no trial of any sort; it’s unfair. The recourse to the Attorney General would provide a guarantee that only this conduct, where there was an intention to defraud, where it was an intentional violation, I suspect, would be prosecuted.
So there were concerns about the failure to recognize the local executive types or volunteers. There was a concern about the fact that there isn’t some leeway like the presumed 15-kilometre-an-hour leeway on the 400 series highways. Everybody assumes that you don’t get pulled over for speeding and it’s pretty safe. It’s actually like an area in which there perhaps can be—you know, bank tellers have to stand on their feet counting at the end of the day; some of them spend hours at the end of the day. They’re not allowed to take the 15 cents out of their pocket. It’s a silly thing that banks do to their employees. It’s designed to maintain integrity, and I understand that.
Mr. David Zimmer: My understanding from what the CEO said, and my sense of how he’d approach this, is that the last thing they want to do is lower the boom on someone or impose a fine. In fact, the practice is that when there are violations and stuff, there are telephone calls, “You’ve done this. Can you clean this up? Can you stop doing that? Can you get this filed in?” and they make a series of repeated calls and so forth. It’s only after those discretionary steps, the telephone calls and “Can you clean this up”—when that fails—do they then even think about imposing the penalty. So your point about cutting some slack I think is implicit in the system and certainly implicit and explicit in the testimony of the CEO. That’s how he would enforce it.
Peter, I don’t think this becomes a world where there is no discretion. The issue here is that the organization and the CEO, the Chief Electoral Officer, have no tools right now of any sort to encourage compliance and most modern statutes have those tools. The plea from them, and I think it’s a reasonable one, is to develop a tool kit. Mostly when there are violations, they generally relate to filing of documentation and reporting in a timely fashion. There are calls going back and forth between Elections Ontario and the riding association, though all of those people responsible for the riding association say, “I’m not involved anymore, sorry. I was only there because Kormos was the candidate and he’s gone now. So don’t call me. I think I resigned. Didn’t I resign?” So then the call goes to the central party, “You’ve got to clean this up.” What do you do? I think all of that will continue. The proposal is for a small tool kit of enforcement mechanisms.
Right now, I sort of like the way the system works. Because the election officer does not have these administrative—they move mountains to help the volunteers, the riding associations, etc. to get their things in order, and you know what? For me, that’s not a problem. I’ve won nine elections in a row. My association runs pretty well—
Mr. Norman W. Sterling: It runs pretty well. Sometimes I go to my chief financial officer and I’ve got to phone him and prod him a little bit and that kind of thing. I can only imagine if you ran for the Green Party the last time. Whatever financing you received, and you don’t know if the records are here and they’re there and all that kind of stuff. Maybe they’re more organized than I think they might be, but how do you keep what I would call a 99% feeling of responsibility in the CEO’s office and a 1% responsibility in the hands of the volunteer? If you get an irrational person dealing with these riding associations and they say, “We’re going to slap you with a fine”—again, I go back to Mr. Johnston. What do the feds do here in terms of fines and that kind of thing?
The Chair (Mr. Greg Sorbara): That’s right, but you know what? I think it’s fair to consider that part of moving mountains ought to be some enforcement mechanisms. The reason is that we say, “These are all volunteers working in basements,” and that’s right, but they are dealing with an important process and significant public financing of the process. I don’t think it changes the dynamic to have an enforcement towards it. We’re not jailing anyone; we’re just providing for administrative fines. The real sanction is decertification.
Mr. Larry Johnston: Yes, I have two things. One thing I have is the information in the Compendium of Electoral Administration in Canada that Elections Canada puts together. That simply identifies who is responsible for prosecuting offences under the act and it varies from jurisdiction to jurisdiction.
The other thing I would offer, just going at it the other way around, is that the Chief Electoral Officer has, in appendix D of his proposal, identified five administrative powers that he would see falling under this section and into this tool kit. In identifying where else these powers are found, one of them is similar to a sanction available under the Manitoba Elections Act, and that’s the ability to issue a reprimand. Compliance agreements in lieu of being prosecuted are, according to the CEO, used very successfully under section 517 of the Canada Elections Act since 2000.
The other three powers that he has suggested, he indicates, are powers that either he hasn’t found another regulator who uses them, or they’re used by securities commissions and regulators of professions, not by electoral administrators at present.
There is the “ability to reduce the campaign expense subsidy for a party or candidate eligible to receive a subsidy,” and he notes that Elections Ontario staff can find no regulator with a similar power, due to the fact that few regulators outside the electoral context pay public subsidies to the entities they oversee.
The final one is the “ability to levy an administrative charge for late filing....” He indicates that this is similar in principle to the late filing penalty that the CRA—I guess that’s Canada Revenue—charges taxpayers.
Mr. Norman W. Sterling: I don’t really have a lot of problem with the first two, but I do have problems with taking money out of the rebate. It hasn’t been a problem for me, but I imagine there are a lot of creditors waiting for that money that the constituency association is going to receive back. I don’t think they should be put in a disadvantageous position because somebody hasn’t filed or dealt with their responsibilities under the Election Act.
Mr. Peter Kormos: My suspicion is that the two most frequent failures are around filing your material within the time frame, because I know that the NDP head office gets all twisted as the deadline approaches, and the other one would be having balanced the books, so to speak.
Our folks say that there’s no ability to apply for an extension, currently. I don’t know if that’s the case or not. But that would be a nice part to include in this, including, as I say, some sort of leeway in terms of accounting, to account for shrinkage, perhaps, if you will, as long as there’s no suspicion, of course, of outright misuse of funds.
Mr. Norman W. Sterling: I don’t have any problem with the first three, but I do have a significant problem with administrative penalties. I think if you’re going to go that far, then the CEO should be pushed to going to the Attorney General and laying charges and going through all of that stuff.
Mr. Peter Kormos: Okay. Look, you know what happens. Again, the failure to report in time and so on comes more often from the campaigns that weren’t successful, because those people are demoralized and discouraged; they disband quickly. Nobody even wants to clean up the committee room. Sometimes it’s successful candidates’ campaigns that don’t want to clean up the committee room. I’m very lucky in that regard.
The Chair (Mr. Greg Sorbara): The ability to impose a fine is a little bit—it just serves as kind of a further encouragement to actually comply. I’m not saying that we should or shouldn’t do it, but if we do it, the real burden will fall on the shoulders of the central party to bring better discipline and better compliance at the local riding level. That’s really what happens.
Mr. Norman W. Sterling: We are all from three established parties that have the wherewithal to deal with these problems, and you’ve got to consider other parties that might want to be involved in the fray. They don’t have those kinds of resources to deal with it. He’s asking for more power in terms of fining than any other jurisdiction in Canada. I don’t see why we should be the leader in this area. Why should we?
Mr. Norman W. Sterling: I mean, fine, give them the right to enter into these agreements; give them the right to do temporary suspensions. That’s fine. That means there’s pressure being applied and something’s going to happen—
Mr. Peter Kormos: I think in many respects it’s a disincentive to comply, because let’s say a small party, a Green Party that’s got 3% of the vote—when he starts talking about fines, people are going to run like the wind. There won’t be anyone left in that riding association. So then you’re even less likely to have people around to produce the written material and the documentation.
The Chair (Mr. Greg Sorbara): Okay. We’ve got a little bit of housekeeping. Just to close off the discussion on enforcement, all I would suggest is that all of us re-look at the areas Mr. Johnston referred to in the report of the Chief Electoral Officer and we’ll come to some sort of landing on this. This isn’t make or break, but we’ll see where we want to land on enforcement.
Now, we’ve been through those recommendations. I, for one, think we need to now start moving toward the crafting of a report. There are a lot of areas where we do not have a consensus yet, but I think one can emerge. The clerk tells me we have some housekeeping to do.
Mr. Norman W. Sterling: Can I just say what I think the next step would be for me? I would like our researcher, Mr. Johnston, to have a couple of weeks to prepare a summary of the discussions. Some of the recommendations have shifted and changed since my last consultation with my caucus and party. I like the table, which he was kind enough to prepare based on your original draft, and now another table and perhaps even another section where there seems to be one or two or three options that we’re considering.
The Chair (Mr. Greg Sorbara): Could that be in the form, Norm, of a draft report where the areas to be resolved are highlighted? I’ve never overseen the creation of a committee report in this Legislature, so I’m open to the recommendations of the members of the committee, the clerk and the staff.
The Clerk of the Committee (Mr. Trevor Day): If Larry is amenable to it, putting together something that says there is some agreement in areas and that’s fine, and that there are some areas where there’s more than one option being floated; if that took the form of something that looked like a draft report similar to what Mr. Sterling was talking about—
Mr. Peter Kormos: Yes. There isn’t going to be agreement on everything in the report unless you want to invite dissenting/minority reports. But the report that could avoid that would simply begin by starting off, “These are the things that all three caucuses agreed to,” and then deal with the others.
The Clerk of the Committee (Mr. Trevor Day): There was mention of inviting the privacy commissioner at some point, MPAC at some point and the Chief Electoral Officer to come back to see how this by-election went in terms of some of the special polling.
In a timeline for that, what would the committee be looking at? Are we not there yet? Would they like to see the draft report first and then we’ll bring people back in as we tighten things up? Just some views from the committee.
The Chair (Mr. Greg Sorbara): Here’s what I’m going to suggest. We’ve got a two-week period where we’re not sitting: I’m away a good part of next week, and the week after that the Legislature is not sitting. So I actually think that whilst Larry Johnston is going about his work, we could profitably meet in weeks three and four and have an opportunity to bring Greg Essensa back—we’ll have more intelligent questions, and he’ll have just gone through a by-election; that’s the first point—and get MPAC here to answer issues on an address authority. But I wouldn’t want to wait until we have a draft report before getting into that, because I think that in weeks three and four we can hear from those folks. I’m not as concerned about the privacy commissioner issues, but if members of the committee are, we’ll have her here.
Mr. Peter Kormos: In view of the fact that we’ve got a better understanding of what this address authority is all about, and that its goal is to create uniform identifiers for addresses and impose those on any number of authorities, the people with the real interest in that are emergency measures people. We have a provincial emergency measures—he’s not a czar anymore, because Fantino moved on; he’s just a prince or a duke—but why aren’t we asking them to come here?
Mr. Norman W. Sterling: In terms of priority, I would actually prefer to hear from the Chief Electoral Officer, and something about the address authority, even before I go back to my caucus and talk to them.
The Clerk of the Committee (Mr. Trevor Day): Legislative counsel has requested that perhaps we have a liaison who works between the committee and the drafter; someone who will take ideas and help turn them into legislative language on the other side. They’ve got a person they’ve mentioned: John Gregory, a general counsel in the AG’s office—not in the AG’s office, but—