1995 Legislative Session: 4th Session, 35th Parliament
HANSARD
The following electronic version is for informational purposes only.
The printed version remains the official version.
(Hansard)
TUESDAY, JULY 11, 1995
Morning Sitting
Volume 21, Number 26
[ Page 16809 ]
The House met at 10:04 a.m.
Prayers.
The Speaker: Before I recognize the hon. Government House Leader, I would report on a matter raised yesterday. The hon. member for West Vancouver-Garibaldi sought to move adjournment of the House pursuant to standing order 35 to discuss a matter of urgent public importance -- namely the crisis in the British Columbia salmon fishery. The member cited the blockade of an Alaska state ferry by British Columbia fishing boats and a question of potential contravention of the terms of the Pacific Salmon Treaty through overfishing by Alaskan fishers. I wish to thank the hon. member for giving notice to the Chair, as recommended by practice recommendation No. 8.
The Speaker's role in considering such an application is to determine whether the test of urgency of debate has been met so as to set aside the normal business of the House. In considering urgency, the Chair has noted that matters which are ongoing do not meet the test. I note that after an active debate, this House passed the following resolution on May 10, 1994:
"Be it resolved that this House call on the Government of Canada to take the strongest possible stand with the United States to achieve full implementation of the Pacific Salmon Treaty's core principles -- namely, an equitable sharing of salmon commensurate with national production and the rebuilding and conservation of salmon stocks -- and aggressively advance British Columbia's interests in support of this salmon resource and the thousands of British Columbians that depend on it."
Clearly the issue of overfishing is of an ongoing nature. See Speaker's decision to be found in the Journals of this House for June 21, 1991, at page 54, and May 11, 1976, at page 191.
Another question which must be addressed is whether the protest this past weekend has changed the nature of the matter. In the view of the Chair, these latest events have not changed what is effectively an ongoing matter. "The fact that new information has been received regarding a matter that has been continuing for some time does not in itself make that matter one of urgency." That's found in the sixteenth edition of Erskine May at page 370. For these reasons the hon. member's application cannot succeed.
D. Mitchell: Hon. Speaker, I rise on a question of order. I can assure you that I do not intend to question your ruling at all. Thank you very much for your ruling on the application. I have a question of order in terms of how matters can be brought before this assembly under our standing orders, especially matters of a timely nature. It would appear that members of the assembly, both individually and collectively, have some limited opportunities for bringing matters before the assembly, either through giving notice for motions or other techniques. I would prevail upon you, through this question of order, to use your authority as a servant of this assembly to see what you can do to initiate a review of the standing orders of this assembly, with a view to being able to bring matters of an urgent nature before this assembly in a more timely fashion.
The Speaker: Okay. Thank you, hon. member. I appreciate....
Interjection.
The Speaker: Order, please.
The hon. member has come very close to beginning a debate on a ruling. However, I can appreciate your question. I'll take it as no intent to debate the ruling of the Chair.
All members know that the standing orders are clear and that standing order 35 is there for the purpose the member has raised. The test of whether it is a matter of urgency, nonetheless, must be to the satisfaction of the Chair.
Hon. member, if you wish to pursue this matter, I'm sure there would be means by which we could discuss ways of perhaps reviewing standing orders or any other matter that the House may wish. I would be more than happy to discuss that with you if you would care to come to my chamber.
A. Warnke: I want to just raise a point of order under standing order 34. It's with regard to the motions that were made last night. I believe the motion was put forward by the member for Okanagan West to proceed with adjournment, and then right after that a division was called. Then the Attorney General also asked for an adjournment, which contradicts standing order 34. Therefore what I'm seeking this morning is a clarification of the fact that we had a situation where there were two motions to adjourn, one following right after another.
The Speaker: Right? What I would prefer to do, rather than respond to that at the moment, is discuss that with officials and get back to you. We will check the Blues, as well.
Hon. C. Gabelmann: On that point, should the Speaker wish any advice from this side of the House, we would be most happy to clarify the role in this House of the Government House Leader at any given moment.
The Speaker: Thank you.
Hon. C. Gabelmann: I call committee on Bill 28.
ELECTION ACT
(continued)
The House in committee on Bill 28; G. Brewin in the chair.
On section 217 (continued).
C. Serwa: I think probably another hour is needed on this particular section. It's really a controversial section, and it bears no relation to section 216.
Last night, when we finished off, the Attorney General referred us to section 154, indicating that in his mind the penalties for a political party that had spent far more than they were allowed to under the Election Act would be heavy, and he referred us back to section 154. When I look at it, subsection 154(1) says: "A political party must be registered in order to (a) be identified on a ballot...." After an election, that's really quite academic. In all truthfulness, it would be a most unusual event for a by-election to occur within six months
[ Page 16810 ]
after a provincial election -- and probably not within the first year. So it's no penalty. And in subsection (1)(b) it says that a party must be registered in order to issue tax receipts. We have covered that, in that it is not necessary to issue them within that particular period as long as they're within the fiscal year; that's adequate. And in subsection (1)(c) it says that a party must be registered in order to incur election expenses. That's over and done with.
It goes on; you can go through the whole list, and there is fundamentally no penalty. The government has come out with this new Election Act, and the purported idea is that money is sort of the root of all evil and that money buys elections. We have discounted that. I think every member in the House, and most members of the public, understand that clearly. Yet here we have, on the one hand, an individual being very severely penalized with the loss of the seat, and in section 217, the section we're discussing right now, there is just a light tap on the wrist to a political party. That is where the controversy comes in.
Hon. C. Gabelmann: I actually honestly disagree with the member. I think the consequences to the party are potentially more devastating than the consequences to the individual, because the individual can run again in a by-election. It's costly, and there are all those kinds of inconveniences, but the potential impact on the party could be really devastating, I think. If I were in charge of a party, I would make absolutely sure that I didn't allow those consequences to occur. The six-month suspension would most likely be somewhere in the second year after an election. First you've got your 90-day filing period, and then there are going to be a number of procedural issues. Then it will go to the courts, and that takes a fair amount of time. By the time a suspension is ordered for six months, it could very easily be in the second year.
[10:15]
Take the 1953 scenario, for example. The 1952 election was fought in a period where a suspension could very easily have been in effect on a party under this law. The consequences are that the party would be really unable to effectively function in that election campaign. For managers of political parties, that has got to be a fear that will ensure that they won't overspend. That has a more consequential impact on the party as a whole than the loss of one seat, which can be remedied and rectified by way of a by-election. I think that they are both tough provisions. In the previous section, the toughness on the individual is less than it is in other provinces -- I made this point last night -- and the toughness on the party is tougher than it is in other parts of the country. We have taken two extremes in other legislation across the country and come down more in the middle. The punishments aren't parallel or equal, but they are both, in my estimation, pretty tough.
D. Mitchell: We are dealing with division 7: penalties for failure to comply with the act. I wonder if the Attorney General can tell us how, in section 217, we can justify having the kinds of penalties that we're talking about for a political party. I tend to agree with the member for Okanagan West that these appear to be relatively light penalties, especially when one compares them with section 221 -- which we're going to come to in a minute -- which shows the kinds of penalties that a leadership contestant within a political party would face for failure to file a contestant financing report.
Under those circumstances, the successful leadership candidate of a political party who failed to file a financing report -- who tried to conceal the manner in which they financed their campaign; who perhaps tried to conceal the manner in which they purchased the leadership of a political party in B.C. -- would be penalized very heavily. In fact, they would be prohibited from becoming a Member of the Legislative Assembly. If they were a Member of the Legislative Assembly at the time, their seat would be declared vacant, and they would not be allowed to run again in the next general election.
That is a very severe penalty, one that I think is appropriate under the terms of this act. How can the Attorney General justify having that kind of strong penalty for a leadership contestant when the penalty for a political party that might form government is, in comparison, a light slap on its wrist?
Hon. C. Gabelmann: The penalty for failure to file is severe here -- no question. It's mitigated, however, by providing, in effect, a fee for late filing. If someone doesn't file, hasn't filed on time and wants to avoid the ultimate sanction of losing their seat.... I'm sorry; they lose their seat, but they can run in the next election upon payment of a late filing fee of $10,000. The next election is a by-election -- or it could be. So they have to file the report, even though it might be late. If they file it late, then by the payment of a $10,000 penalty -- a late filing fee, if you want to call it that -- they are entitled to run in a subsequent election, having forfeited their seat for failure to file.
D. Mitchell: I understand what the Attorney General has told the committee. The penalties for an individual are very severe. The penalties for an individual who wins the leadership of a political party are extremely severe. In fact, they're prevented from sitting in this assembly. They are even prevented from running in the next general election, even though they may have won the leadership of a party that might be the governing party of the province. How can we justify the kind of legislation that brings in limits for spending and disclosure requirements but has penalties for breaking those rules that don't appear to be consistent or even?
What if an individual or a party consciously and deliberately flouts the law and does not file a report? It's not a question of late filing but of consciously and deliberately not following the terms of this law. We know that when it comes to a political party, the penalties aren't really that severe, because the political party that wins an election could still govern even though they deliberately avoided and ignored this legislation; whereas an individual who does that can't serve in the Legislature. An individual who seeks to win the leadership of a political party -- perhaps a political party that's governing the province or seeks to govern the province -- is prevented from sitting in this assembly and prevented from even running in the next general election. How can you square that? Those penalties are severe, but they're not consistent. I question whether or not the penalties section of this bill -- penalties for failure to comply -- has really been thought through because of that.
Hon. C. Gabelmann: In fact, the sections have been well thought through. There may be a difference of opinion about how to accomplish equity in respect of penalties, and there may also be a difference of opinion in what members of this
[ Page 16811 ]
House think about the impact of the various penalties. I'm prepared to agree that there are those differences, but I want to assure members that this has been thought through.
There is an individual responsibility issue here. It's easier to hold individuals accountable for their actions than an entity. That's just a reality. All of this starts with individuals who are running in campaigns.
But having said that, the penalty sections for the institutions are, in my view, more severe and significant than members are acknowledging. However, if there's a difference of opinion about this issue, that's fair enough. I'm satisfied that these penalty sections are fair and appropriate, and will be effective.
D. Mitchell: I'm prepared to accept that maybe part of this is simply a difference of opinion. But I wonder if I could ask the hon. Attorney General one question, then, on a specific scenario under this failure-to-comply division of the act, in the case where a political party was to contest a general election in British Columbia, where that political party had a new leader through a leadership convention and where that party was victorious, elected through having the largest number of members in this assembly and actually formed the government. After forming the government, if it was determined that the political party failed to comply with this act -- perhaps by overspending and exceeding the spending limits, for instance -- and it was simultaneously determined after the election that the leader of that party had failed to comply with this act by not reporting the expenses and other terms of disclosure required under this act, my understanding is that this leader would be prohibited from serving in this assembly. I seek correction from the Attorney General if I'm wrong here. That leader, if that leader was an elected member of this assembly, would have his or her seat declared vacant. A by-election would have to be called. That leader would not be allowed to run in the subsequent general election. However, the political party also, for failing to comply with the act, would really not be penalized at all. It would still be the governing party of the province. It would be deregistered for six months, sure. But the political party would still be able to govern, even though the leader would not be allowed to serve. Is that correct?
Hon. C. Gabelmann: The member paints a theoretical sketch that could occur. If a leadership convention occurs close to an election -- which is a scenario that's envisionable, if I can make up that word -- and the leader fails to disclose the expenses in the leadership campaign, wins the election and forms a government, then all the procedures are gone through, and his or her seat could be forfeited. They would be able to run in a by-election. But it's also theoretically possible that the party would not be able to use its name on the ballot, if the party was registered, for other reasons that it too failed to disclose.
I think these theoretical sketches are stretching the limits of credulity as well. Political parties that are likely to be in a position to form government are going to treat this law seriously and are going to make sure that they're not in violation of the act. I think the federal experience is perhaps a useful one, too. There have been many suggestions that candidates have overspent, and there have been very, very few instances where, at the end of the day, that has been so demonstrated. I think members know of cases across the country where that has occurred in the last 20 years. My view is that these theoretical sketches, while technically possible, are very likely never to happen, because political parties within reach of being government are going to be very careful to make sure they're within the rules.
C. Serwa: I appreciate the quality of the response from the Attorney General. I hate to belabour this one particular section, but I would like to point out a couple of areas, again, that I perceive as real inconsistencies on the part of the current government.
The Attorney General was talking about the penalties to the entity and that it was appropriate that the entity -- the political party, in this particular case -- suffer these penalties, which we on this side of the House consider just like wrist-slaps. I think that the public is concerned with the concept of the entity. Again, on one aspect involving the Nanaimo Commonwealth Holding Society, the entity was prosecuted -- no individual -- as if the entity had a life of its own. And yet it is inconsistent with a number of other pieces of legislation that the current government has brought in during this particular parliament -- environmental law, for example. If there's a violation by a corporation, it's not the entity, it's not the corporation. Along with the corporation is the president, the CEO and all of the directors who share that responsibility. It's the same thing with the Forest Practices Code. It's not the entity or the corporation; ultimately it's an individual in that corporation. Here we have no individual. If this were to be consistent with the above penalties, then surely at least the leader of the party should be identified. Someone has to be responsible. It cannot simply be a creation on paper that assumes the responsibility with impunity, because you can't put your hands on anyone. It seems to be inconsistent. Either the penalty on the individual is too severe or the penalty on the political party is far too lenient in the context of this legislation, and that's the problem I have with it.
[10:30]
J. Tyabji: Last night when we were canvassing this in debate, the Attorney General said that the penalty for the party would be the six-month extension of suspension of the rights to issue receipts and collect donations. It occurred to me after the debate: what would happen in the event of the party continuing to do those activities? What kicks in at that point as a penalty, other than the suspension? It's quite likely that even if a suspension were in place, those activities would go on. I see a standing order that might be.... How does that fall into place? Is there anywhere in this section where another act will kick in? If so, which one would it be? Or are there provisions in this act to account for activities in contravention of this section?
Hon. C. Gabelmann: I'll explain privately to the member about the reference to the standing order, and she may understand that.
The violations could be of the Income Tax Act or the Offence Act. There could be a court injunction ordered under section 263 of this bill, which then would create a potential contempt offence. So the sanctions are pretty significant and varied.
[ Page 16812 ]
J. Tyabji: How are those activated? For example, when you talk about the Offence Act or the potential court injunction, would that court injunction be activated by a member of the public, or is that the chief electoral officer? Who gives the chief electoral officer their marching orders?
Hon. C. Gabelmann: The suspension would have been ordered by the CEO. If it's then being violated, the CEO could go to the court and ask for an injunction.
J. Tyabji: The Attorney General has said they were talking about a lot of hypotheticals. Let's talk about a real scenario, where a political party registered under the Society Act violates provisions of the Society Act in a leadership convention. Although the registrar may choose to prosecute, they don't, because it's in the political arena and they don't want to open up a big can of worms. The only thing that's left is for members of a political party to litigate, which they don't choose to do, because they just leave the party. That's a real scenario. So in that kind of scenario, what is the provision...?
In this case, for example, the Attorney General is setting up the same model where the CEO may choose to bring in some sort of penalty or enforce the suspension. But there are so many grey areas, especially when we're dealing with political parties. Is there going to be direction in regulation or somewhere else that will tell the CEO that this is an important thing, or is it going to be...? I heard the member for Okanagan West talk about another example being the Nanaimo Commonwealth Holding Society. Once you get into that grey area -- you've got a government party and an opposition party -- nobody wants to touch it, because they're worried that they're going to be stepping into an arena where there's going to be a lot of fireworks. It's a lot easier not to do anything or to have everything shuffled off to a third party, which is not necessarily in the public's best interest.
Hon. C. Gabelmann: This is another example of why the CEO needs to be independent from the whole political process, but also be advised by representatives of the political process through the parties. So there are checks and balances here that enable an appropriate resolution.
G. Wilson: I just have a couple of very quick questions, and then perhaps we can move on.
The CEO is not bound. There's nothing binding on the CEO unless there is a complaint filed, as I read this act. In other words, somebody has to come forward and provide the documentation and information in a case of a violation of spending limits. It seems to me that there are just too many ways that creative bookkeeping is going to be able to hide a party's expenditures.
I mean, I've been in this business now for a little over ten years, hon. Speaker, and I can assure you that I have seen the most creative bookkeeping. Debt obligations are hidden in the most ridiculous manner by certified general accountants providing a set of documents that have very little truth in reality; yet these are the official documents that we are supposed to deal with.
It seems to me that there are endless ways around which political parties can operate. By bringing in this bill the way it is written, my concern is that we're going to encourage candidates to stick within a spending limit -- which they'll do -- and simply shunt additional expenses off as a general party expenditure that is very easily hidden. Unless the CEO is empowered to go in and actually do a proper fiscal audit without necessarily having to do so in response to a complaint.... In other words, this should be a mandatory event; this is something that should be done. Political parties should undergo an independent audit. If that were done in the province right now, there would be a whole host of interesting things found.
Hon. C. Gabelmann: Under section 260 -- and I made this reference last night, as well -- the chief electoral officer must conduct periodic investigations into the financial affairs of registered political parties, and he may conduct audits. If someone requests that he do so in a particular instance and he chooses not to, he has to explain in writing -- he or she. I make that really clear: the CEO must put in writing why they have chosen not to do an investigation into that particular allegation.
G. Wilson: This is my last comment on section 217. We will deal with it more when we get into those sections. I do think that it's worth noting for the record that the penalty levelled against the political party really is inconsistent with the penalty against a leadership contestant and a candidate.
My concern is that there is going to be a tacit agreement among political parties that they're simply going to expend to a certain amount, and any additional amount will be hidden in a whole variety of ways that they can do that. I really don't have any faith that section 217 is going to make an ounce of difference when it comes to the overall expenditures of parties. As an individual who managed 33 percent of the vote with about $100,000 in expenditures in comparison to the competitors' $4 million and $6 million, I speak from experience. I just don't think it's going to have much effect -- although I'm not necessarily sure that that kind of expenditure really has much weight in the outcome of a provincial election, anyway. Sections 217 and 218 approved.
On section 219.
Hon. C. Gabelmann: I move the amendment to section 219 standing in my name on the order paper.
[SECTION 219, in the proposed section 219 (1), (3) and (5) (a) and (b), by deleting "the Supreme Court" and substituting "a court".]
On the amendment.
J. Dalton: Can the Attorney advise us as to why the Supreme Court was the reference? Now we're changing that to "a court." I think I understand, but I'd like it put on record as to why that is.
Hon. C. Gabelmann: That's to make it clear that it could be the Court of Appeal. An appeal could go to the Court of Appeal.
[ Page 16813 ]
J. Dalton: I have one other question in line with this. Given that there are various offences under this, and those are all summary offences, is it not also possible that we could be dealing with the Provincial Court, depending on the context and the subject matter?
Hon. C. Gabelmann: No, because this section refers to an application to the Supreme Court for relief, and then an appeal of that could go to the appeal court.
Amendment approved.
Section 219 as amended approved.
Section 220 approved.
On section 221.
G. Wilson: I have a couple of very brief questions, because my colleague for West Vancouver-Garibaldi actually covered some of it in section 217. I understand that there are two different ways in which this can apply. In this session -- from 1991 to 1995 -- four new political leaders have surfaced: the Leader of the Official Opposition, who has no mandate from the public but who did get a mandate in Quilchena, but he has no provincial mandate; the leader of the Reform Party, who has a mandate from Peace River South but has no provincial mandate; the leader of the Social Credit Party, who is an unelected member and does not sit in this chamber but is nevertheless leader of that party; and the leader of the Alliance, who had two mandates, actually, one as the Leader of the Official Opposition, and one now as leader of this party.
Interjection.
G. Wilson: My colleague for West Vancouver-Capilano asks, quite correctly, who mandated the second one. That was mandated strictly by a partisan process within the political party. So there are two ways in which this leadership process comes about. The first is with respect to a very partisan affair; through a partisan effort, the candidate becomes the leader of the political party, and then, depending on the number of seats won, takes a particular position -- Premier of the province, Leader of the Opposition, Leader of the Third Party or whatever. My concern here is that if there is a leadership contest that may fall within a general period, that could be deemed part of the election expenses -- and that's not unusual. If you think back to 1991, when the leader of the then government -- the Premier -- stepped aside, they had a leadership convention, which was used very much as a hype and roll to try and drive a new face into the writ period. All of those expenses and the moneys that came out of that could very much be seen, I think, as part of the general provincial campaign.
This is particularly relevant when the government has the option to call the timing of the election, and it becomes relevant if the government times that election for a post-leadership period, in which there can be a very skilful and crafty kind of meshing. It didn't do them any good, and I have enough faith in the electorate to think that if there is fair representation of those who are running, the electorate is going to make a fair and proper decision. But the rules here, I think, become quite punitive with respect to the penalties that a leadership contestant who is an elected member may face, as opposed to those leadership candidates who are not, or who do not, become elected members.
I wonder what the thinking was to make the distinction between those who hold an elected seat and those who don't, because their influence within the political parties are the same. The mandate is somewhat different, but the penalty in this rule is draconian in its difference. Maybe the Attorney General could just tell us what prompted that thinking.
Hon. C. Gabelmann: If the leadership contestant who fails to file doesn't rectify that by way of paying a fine and filing, then the penalty is equal. If they're a member of the House, they forfeit their seat and can't run in the next general election. If they're not a member of the House, they can't run in the next general election. In both cases they are ineligible to be members of the House or to run in the next election, unless they take the mitigating steps, which clearly people would do.
G. Wilson: If I could just back up one step to the last part of what the Attorney General just said. If they are not a member of the House but are obviously seeking to become one through a by-election or whatever process, if they fail to file their leadership expenses, run in a by-election and get elected, and if they fulfil the obligations of this act with respect to election expenses in the by-election, then is there nothing here that captures a leadership candidate who doesn't file expenses prior to election?
[10:45]
Hon. C. Gabelmann: In section 221(1)(b), candidates could not even be nominated unless they have met the requirements in section 221(2), which are the $10,000 fine and the late filing. The penalty is equal in that sense; people just can't be members of the House unless they do these things. It doesn't matter whether they have been or haven't been.
G. Wilson: As I understand it, then, if this act was in force in 1993, the current Leader of the Official Opposition could not hold office in British Columbia. Is that correct?
Hon. C. Gabelmann: That makes a lot of assumptions. There's an assumption that the act had been in place. It wasn't. There's an assumption that he hadn't filed. Well, he didn't have to file because the act wasn't in place. Then there's an assumption that if he hadn't filed, he chose not to file late and pay the $10,000. I think there's just too many assumptions. While I appreciate the politics involved here -- and it would be a strange day in this chamber if politics didn't rear its ugly head on occasion -- the reality is that there are just too many assumptions for me to answer that question.
G. Wilson: Well, that has to be one of the safest answers I've heard yet. But the fact is, as I read these rules and as I understand the circumstances, notwithstanding the option that was there to file, if events had prevailed the way that they actually did prevail in history, this act would prohibit that member from sitting in this chamber.
I think that it's important to know that, because people who are looking at the effect of this act.... I'm not trying to revisit that issue. I'm just simply saying that as events unfold in the future, I understand this act will -- and this may be
[ Page 16814 ]
actually a very good feature -- prohibit a purely partisan event from taking place in what may be a questionable and, I would argue, fraudulent -- manner and therefore allowing somebody to enter this elected chamber and hold that office through one by-election. That's what I understand this act will do. If that's the case, then that may be a good thing for the people of British Columbia, because it will provide a set of rules that will be consistent, regardless of the partisan nature of the events of the day.
W. Hurd: I have found this discussion with respect to section 221 quite fascinating, as it reverts to the definition of a leadership contestant financing report under section 210. I wonder if the minister could tell us whether there would be an opportunity for someone within the same political party to challenge the veracity of the statement that was placed on file before the chief electoral officer. I'm thinking that a leadership contestant who lost and was quite embittered by the process might come forward to challenge, under section 221 the veracity of the report that was filed, for no other reason than being unable to accept the verdict of his own political party.
Hon. C. Gabelmann: Hon. Chair, I've enjoyed being the referee for this squabble among ex-family members. It's fun, but I don't think it helps us get on with the bill.
J. Tyabji: Because of the person who was speaking in debate and the person he was referring to, people have entirely missed the point of what he was trying to say, so I'm going to use a different example. In the last provincial election and in the last federal election, the two leaders who went to the polls representing their parties were not the people who received the mandate in the previous general election. For example, federally, our Prime Minister Brian Mulroney had received the mandate in the previous general election, and through a partisan process was replaced. We had a new Prime Minister through a process that was not open to the general public, and Kim Campbell went to the polls as the new Prime Minister. In this province, Bill Vander Zalm received the general election vote, and through a partisan process was replaced by Rita Johnston in the time leading up to that.
Unfortunately, because there's some thin skin in this room, when we were using the example of the Liberal Party in B.C., one person took it in the general election, and a partisan process brought someone else in. We are trying to find out if there is something in this section that would preclude a partisan process from putting someone new in place, whether it's a leader of the opposition or a Premier or whomever it is, if they don't follow the guidelines of this section. The reason we're asking this.... Every time that happened -- federally and twice provincially; once with the Social Credit government and then with the Leader of the Opposition -- people asked us: how is it possible that we've voted for one person and we've been given someone else through a closed process? If there is a provision here, that would be a good thing for providing the general public with some assurance that when they cast their ballot for one person they don't have a partisan process giving them someone else when they haven't been asked again.
Hon. C. Gabelmann: I don't want to get into political science 101 here, but people don't vote for the leader, they don't vote for the Premier, they don't vote for the Prime Minister. They might think they do, but they don't; they vote for the MLA, and they don't have somebody foisted on them from somewhere else. It may be that the leader of that MLA's party has been selected by a process which is outside the public arena. That happens, but people do not vote for Prime Ministers or Premiers. I know that's a misconception. I know that the Americanization of Canadian politics continues apace, but the reality is that they don't. So while the member's point is an interesting one, it is academic.
The Chair: I would like to recommend to people that we focus on the issue of the section, which is about filing, and would recommend that to the members as they address the points under section 221. The hon. member for Powell River-Sunshine Coast on the issue of filing and failure to file.
G. Wilson: The reason I came at this was due to the question of filing. I'm not going to get into a philosophical debate as to whether people vote for leaders or don't vote for leaders. While it's technically true that people elect an MLA, we also know that right across this country in every province, the media presents the leader. For example, we've heard today that in a public opinion poll, which we'll get to later in this act, Jean Chretien enjoys X percentage, Manning has slipped to Y percentage. That's the fact, so that's what happens.
Coming back to filing, because that's really what is at issue here, the only point that I want to make -- and I think it's an important one for people to understand, especially people who are interested in getting into the partisan process -- is that the requirements within section 221, in terms of the filing of fees, are going to make an individual who runs for leadership of a party between elections -- not during the writ period -- who takes that party's leadership.... If they're an elected Member of the Legislative Assembly, it somewhat compounds their problem. Their penalty is greater, because they will lose an existing seat if they fail to file. What is important about that is that the process by which a party may opt to run a leadership campaign is not covered in this act. There is nothing that tells a political party how it has to run its leadership contest, nor should there be, as the member for Prince George-Omineca says quite correctly. That is something that is entirely up to that political party, provided that it doesn't contravene any other statutes of the province -- which it may do, and in fact in some instances has done.
In that sense, what it means is that the partisan process may very well result -- if there is any kind of internal sabotage within that process -- in removing an individual from their seat. And failure to file -- that is, those people who would operate out of a backroom machine -- will prohibit that individual from taking his seat. That, I think, is a good thing; I'm not arguing it to be a bad thing. It's important for people to know that the business as it has been undertaken over the last couple of years would not be possible under this act, which I think is a good thing.
D. Mitchell: Just one small question. Under section 221(3), we find that the chief electoral officer must present a report to the Speaker with respect to a member of the assembly who may be subject to a penalty under subsection (1)(a) as soon as possible after the end of the late-filing period. So we know that the CEO must, during that period of time, present a report to the Speaker, but there is no requirement that the Speaker do anything with it. Is there any requirement contem-
[ Page 16815 ]
plated under this act that such a report from the CEO would be made public at any time, or is there simply a requirement that it be presented to the Speaker? Such a report could be presented to the Speaker, and the House might not be sitting. In that case, would the Speaker simply wait until the House sat before tabling it in the Legislature and making it public? When would we know if an MLA -- in particular, a leadership contestant who was an MLA -- had contravened this section, had failed to file contestant financing reports? Would it only be when the House was sitting, so that the Speaker could report to the House? Is there any requirement for the Speaker to make that public at any time, or could the CEO simply deliver such a report to the Speaker and it ends there, and no one ever finds out about it?
Hon. C. Gabelmann: When the House isn't sitting, the report is given to the Clerk; that is the case normally. But in this case, the CEO would also have to gazette the report: it would have to be published in The British Columbia Gazette.
Sections 221 and 222 approved.
On section 223.
Hon. C. Gabelmann: I move the amendment to section 223 standing in my name on the order paper. It has the same effect as the last amendment we dealt with.
[SECTION 223, in the proposed section 223 (2), by deleting "the Supreme Court" and substituting "a court".]
Amendment approved.
On section 223 as amended.
G. Wilson: I wonder if the Attorney General might comment on 223(1) and (2) in relation to the commentary we've had earlier on with respect to the political party being deregistered. It seems to me that this adds a new wrinkle to what we were debating under section 217.
Hon. C. Gabelmann: What this section does is if 15 constituency associations or 50 percent of the number of constituency associations, whichever of those numbers is lesser.... I'm sorry, that's candidates -- failure of candidates to file. In my own mind I always put candidates and constituency associations in the same bag, but this act doesn't do that. If the candidates fail to file, then the party is responsible. The party has an obligation to ensure that the candidates running under the party's name in fact do file. Those candidates, if they don't file in these large numbers, would cause the party to be deregistered.
G. Wilson: I just wonder what the thinking was with respect to the numbers. Why would you have 15 or 50 percent? It strikes me that if you got one, then that's an anomaly. Two may be a coincidence. Three may be a problem. Why would you wait until you had 15 people in violation before the party was held accountable?
[11:00]
Hon. C. Gabelmann: The numbers are arbitrary. Actually, in this section there could be any number of numbers, but we just thought this would be a threshold that makes sense. If there are 30 or more candidates in the party, which presumably is a major party, then it requires having 15 fail to comply before the party gets deregistered. Maybe the number could be less -- arguments could be made -- but it's a small point.
It's not going to happen in respect of major parties, I'm sure. In respect of minor parties, if somebody runs six candidates and three -- half of them -- don't file, then the party is deregistered. I'm not going to get into a long debate about this one. The numbers are arbitrary. I concede that.
G. Wilson: That's fair enough. I think the numbers are too high. Anyway, that point could be discussed, I guess, by this committee that's going to be struck.
I hear the Attorney General referring to major and minor parties. There's nothing in the act that defines those. I hope we don't get into the habit of talking about major and minor parties, because that's where we get into the habit of who's included in debates and who isn't.
Section 223 as amended approved.
Sections 224 to 226 inclusive approved.
On section 227.
The Chair: On section 227 we have several amendments.
Hon. C. Gabelmann: I move the amendment to section 227 standing in my name on the order paper.
[SECTION 227,
(a) by adding the heading "Division 1 -- General" immediately before the proposed section 227, and
(b) in the proposed section 227, by adding the following definitions:
"contribution" means a contribution of money provided to a sponsor of election advertising, whether given before or after the individual or organization acts as a sponsor;
"value of election advertising" means
(a) the price paid for preparing and conducting the election advertising, or
(b) the market value of preparing and conducting the election advertising, if no price is paid or if the price paid is lower than the market value.]
On the amendment.
D. Mitchell: I don't want to belabour this section, but it does offer the definitions for election advertising and opinion surveys. We're about to enter into part 11 of the act, dealing with election communications, and it's quite an important part. It's going to receive some discussion, I'm sure. Before we do that, it's important to understand the purpose of these amendments, which have been given notice of by the hon. Attorney General, dealing with the definitions for election advertising and election opinion surveys. I wonder if the Attorney General could just offer a brief explanation of why these amendments are required at this point.
Hon. C. Gabelmann: If I can divide the amendment into three, the first just creates a new division because of the new way of dealing with third-party donations or expenditures. Second, there is a definition of "contribution" because we're setting up this different scheme than we had envisioned in the
[ Page 16816 ]
original bill. Finally, value of election advertising is simply going into section 227 out of section 229; it now makes more sense for it to be in that section.
D. Mitchell: Just for clarification, then, what is being added is a new section called Division 1, which refers to contributions as meaning "... money provided to a sponsor of election advertising, whether given before or after the individual or organization acts as a sponsor."
I take that to mean that this could be outside of the election writ period. The definition in the bill of election advertising seems to be specifically for advertising during a campaign period. Election advertising is something that is done only within the writ period, but this amendment adds a new heading, "Division 1," and defines a contribution as any "money provided to a sponsor of election advertising, whether given before or after the individual or organization acts as a sponsor." So that could be outside the writ period. Is that correct, and why is there that difference?
Hon. C. Gabelmann: It's the same principle throughout the bill: contributions are recorded in and out of writ periods; expenditures are recorded in writ periods.
D. Mitchell: Then the definition of an election opinion survey under this section only deals with public opinion polls and public opinion surveys within a writ period. Is that right? Why is there no amendment providing for some regulation of opinion surveys on a year-round basis outside of election writ periods? Was any contemplation ever given to such an amendment?
Hon. C. Gabelmann: Because that was the decision of the government in bringing in this bill.
J. Dalton: This is a straightforward question that perhaps won't get a straightforward answer: what is a sponsor?
Hon. C. Gabelmann: If the member looks at section 228(1), he will see that sub-subsections (a), (b) and (c) define, in effect, what a sponsor is.
J. Dalton: I can recognize in part that that may be applicable, but I'm very concerned about the amendment the Attorney is now defending. Suggesting that anything done before the individual or organization acts as a sponsor.... How can somebody be identified and caught by this amendment as a sponsor before he becomes a sponsor? I think that is a bit haywire.
Hon. C. Gabelmann: A sponsor could be any organization that has decided to support a political party. Prior to the writ and in anticipation of an election, they may have raised money in order to spend it under this section. Disclosure is required in the same way that political party contributions must be disclosed if they're received prior to the writ, even though they may not be spent until after the writ is dropped.
J. Dalton: Many times in this committee we have discussed and are in general agreement with the need to disclose. Let me present this very possible real-life scenario. We talked last evening about public policy issues, and I cited gun control. It is quite likely to be an issue in this upcoming election. When I say that it's an issue, I don't mean specifically that we as 75 potential candidates are going to be tramping around our ridings arguing about gun control. That's a federal matter, and it's dealt with on a separate level. However, there are organizations out there, as the Attorney well knows, who are advocating for the gun control issue, either pro or contrary. Those parties and individuals and organizations aren't necessarily thinking along lines right now -- leading into whenever this election will take place -- about whether they will sponsor or not sponsor any political party, whether it be the PDA, the Socreds, the Reform, the Liberals, the NDP or any individual as an independent. And there might be other political parties -- heaven forbid! -- that surface before the election.
Let's take this, for example. There is a Tory party in this province. I heard that federally the Tories have moved into second place -- for what that's worth. To extend this line of reasoning one step further, let's say that every other political party decides not to touch the gun control issue. Isn't it true, Leader of the Third Party that you don't want to talk about gun control? But the Tories come out, after some organization has advertised and contributed to a campaign, pre-writ. We'll say that the gun coalition movement has come out with a heavy-duty campaign dealing with the gun control issue, and it's the only political party, after the fact -- just before the writ is dropped, perhaps -- that comes out with a statement which basically is in agreement with that position, and no other political party has even talked about it. Is that scenario caught by this before the organization acts...? In other words, would the gun coalition then have to account for all the money they did spend on advertising a cause that had nothing to do with the upcoming political event -- the election -- and basically nothing to do with any political party, other than one that came out of the woodwork at the last minute and said: "Hey, that's our issue"? I think the Attorney General is suggesting that all the benefit that came from that campaign has gone to that party, and I don't believe that. That is not a scenario that could exist; that doesn't make any sense.
Hon. C. Gabelmann: Let's just continue with the gun issue as an example. The Responsible Firearms Owners' Coalition -- I think that is the name of the organization; it is an umbrella group -- has been campaigning for some time with respect to that issue. They could continue to campaign in the way that they have campaigned, in my view, given that.... I still don't know what the Liberal Party position is on that issue, but I know what the Reform Party position is, and I know what our position is. Their campaign, in some measure, supports our party's concerns -- and in some measure, it doesn't. The Liberals don't have a position, so obviously the campaign wouldn't have any impact on them. The campaign, you might argue, is coincident with the Reform Party policy. I think that if the campaign continued as it has been conducted to date, it would be hard to argue that it is in fact third-party advertising in favour of the Reform Party. I would think that it would be very difficult to demonstrate.
However, that's something that would be tested and demonstrated later on. But if the advertising during the election campaign changed in its focus and said, "If you don't want gun legislation, the only way you can get that is by voting Reform," then it becomes tested under the legislation. They would be able to spend $5,000, first of all, if they disclosed it, and then the rest of what they wanted to spend would have to be within the Reform Party's $2 million budget, which I would suspect would have plenty of room for that.
[ Page 16817 ]
Anyway, there's no restriction on their attempt to inform their members, as they've done regularly, about their position. As long as they're not campaigning directly for or against a party -- and it's campaigning directly or indirectly, for or against -- then they're free to spend all their money, and there are no restrictions.
I actually continue to fail to understand what the concerns are about this. I think the real concern on the part of the Liberals is that they know there is going to be a $50,000 limit....
Interjection.
Hon. C. Gabelmann: The real concern on the part of the Liberals.... I'll deal with them for a moment; they're the official opposition, and they're the ones who should be held accountable once in a while. The real concern is that they have decided that it takes something in the order of $170,000 to win one riding, and that's the kind of money they want to spend. They know that the limits are going to be $50,000, so they want to be able to get third parties to spend the other $120,000 on their behalf. That's what they want, and that's why they're raising concerns around the third-party registration. It's not a free speech issue; it's so that they can get around the limits, so that they aren't bound by spending limits. That's what it's about. What other reason could there be?
It's not a free speech issue. Organizations will be able to continue to notify their members of their positions, as they've done regularly. Organizations will continue to be able to do opinion surveys of candidates. They'll continue to be able to put forward the views of their particular organization, but what they can't do is sneak in, around and under the limits by supporting or opposing political parties by spending money to achieve that purpose. Because if they can, what's the point of having limits? Clearly, I think anybody who opposes these very generous third-party rules is really saying that they don't want campaign limits. They want organizations to be able to use subterfuge to get around the limits imposed on political parties.
J. Dalton: Just one or two other points. Firstly, does this act have jurisdiction over federal public policy issues? We're talking gun control. This House cannot say yea or nay to gun registration, although I think the Attorney does have a big problem coming up as to how we're going to implement this provision that Alan Rock has produced. I'll just throw that out for what it's worth.
We argued public policy in an earlier section. This, of course, is now getting into: "Well, that's not public policy." If you're going to put out an advertising campaign -- or so-called -- you're going to get caught by the $5,000 ceiling that the Attorney is going to foist on us in this part of the bill. I think we've got a problem right there, because obviously everyone who has a cause is going to say that it's public policy, whether it be federal, provincial, municipal or whatever. That's going to be a problem. I know it's going to be a problem.
[11:15]
We really haven't satisfied the question I raised. I still cannot believe.... The Attorney certainly didn't address it. He got off onto some sidetrack about whether we're going to comply with this act. Well, of course we are. It was my bill two years ago that accelerated and precipitated a lot of the discussion we're having at this very time. And before the fact, there is no way that a court.... This is what's going to happen, hon. Attorney. This issue will end up before a judge, and the judge will ask: "How could anyone comply before the fact with a law that they did not even contemplate, number one, and number two, that they had no intention of breaking?" It's just not going to wash, so this is bad. It won't come as any surprise to the Attorney that we are going to strongly oppose this and every other section that follows in this part of the bill.
Hon. C. Gabelmann: Let me say clearly to members of this House and to members of the public that the reason the Liberal Party is opposing these restrictions on third-party limits is so they can find ways of spending something like $170,000 in every campaign -- the way they did in the Abbotsford by-election.
Interjections.
The Chair: Order, members.
J. Weisgerber: I find the debate around the gun issue an interesting one, because I think it focuses people's minds on the whole issue of third-party advertising. I believe the Responsible Firearms Owners' Coalition represents a group that will, at the end of the day, be affected by the legislation, because I do believe that group of people is apolitical. They do want to push their issue. They have an issue that transcends political organizations, and anybody who has attended their meetings will understand that. There are NDP members, perhaps there are even one or two Liberals, and other political parties -- Reform and others -- are well represented in their ranks. I believe what they would like to be able to do during a campaign is attack the position taken by the federal government, not necessarily the position taken by the NDP, although clearly they are one and same in this instance. They would like to be able to attack the position taken by Alan Rock and the Liberals in Ottawa. I believe they see themselves being constrained in that exercise by this legislation.
[L. Krog in the chair.]
Now, my question to the Attorney General is: if a group like the Responsible Firearms Owners' Coalition were simply to run an ad in which they, first of all, attacked the position taken by the NDP government in Victoria, attacked the position taken by the federal Liberals and Alan Rock in Ottawa.... If they were to clearly explain to British Columbians that they and nobody else could understand the position taken by the Liberals in British Columbia, and were to outline the position they understand Reform B.C. to be taking, which is solidly in support of their position, would that ad pass the test, inasmuch as it appeared to be, and would genuinely be, an explanation for voters and their members? It may not be an issue. Would public advertising allow for that kind of factual analysis of the position of each of the parties? Would that be in contradiction to this law?
Could the Attorney General advise whether these restrictions would apply to communication by an organization like the Responsible Firearms Owners' Coalition with their members? Could the coalition engage in a vigorous campaign during a writ period with the members of their organization,
[ Page 16818 ]
or perhaps...? Let me pose a third question for the Attorney: first, public advertising; second, a vigorous campaign with their own membership; and third, a mail campaign with individuals who are on a mailing list specific to the Responsible Firearms Owners -- people who may have been in correspondence previously with the coalition -- to use that group as an example.
Hon. C. Gabelmann: I'll take the second one first. They would be able to campaign vigorously with their membership and say: "Here's our position as an organization, and the Reform Party is the only party that agrees with us." They can send it out to their membership; no problem.
In respect of the first issue, which is advertising, the way the member characterized it, that would be election advertising and would be caught.
The third issue, which is a special list of names which is not the regular membership list of the organization but which was brought together as a result of petitions and whatever else, would be election advertising as well.
W. Hurd: Speaking to section 227, which is about election advertising and surveys and the purposes of the act, I want to pursue a line of questioning with respect to the rights of government during an election campaign, as far as advertising goes.
Interjection.
W. Hurd: I'll wait for the main section, hon. Chair.
C. Serwa: The concern I have is: what type of penalty? For example, the member for Peace River South asked several questions about advertising. It seems that here is an organization not connected to any political party -- apolitical in that sense, other than belonging to a group -- that is going out of its way, perhaps during the election campaign, in the normal course of serving its interests, and the Attorney General is saying that somehow that is going to be election expenses charged against the party it supports. Even though the party they actively support has no knowledge of it and does not advertise in the publication, it's going to be charged to that party's election expenses.
It is difficult to understand how the accounting is going to occur and how the enforcement of this legislation is going to occur. It goes back to the basis of a never-ending squabble over what constitutes a bona fide election expense and what is not a bona fide election expense.
Hon. C. Gabelmann: If a sponsor exceeded the limit that they're allowed -- the $5,000 -- they would, first of all, be registered as a sponsor and subject to a fine of ten times the amount of the excess. In other words, if they spent $6,000 instead of $5,000, that's $1,000 times ten, which is $10,000.
Amendment approved.
On section 227 as amended.
J. Weisgerber: I'd like to move an amendment adding a section to section 227, to be numbered section 227.1, which would provide for a restriction or restrictions on....
The Chair: Hon. member, we have to deal with section 227 first. If you're adding a section 227.1....
J. Weisgerber: The intent of the amendment is to amend section 227 by adding 227.1. If you pass section 227 and are then prepared to allow me to move a section 227.1, I would be most happy to do that.
The Chair: Shall section 227 as amended pass?
I recognize the member for West Vancouver-Garibaldi.
D. Mitchell: Just before we move from section 227, the Attorney General has told us that the government simply decided not to regulate election opinion surveys, defined in section 227, outside a writ period. I would just like to get some confirmation on what the government contemplates with this new law.
What the government is saying, I think, is that throughout the year, when there is no election writ period, any media can publish any public opinion survey, scientific or otherwise -- a hamburger poll or what have you -- without any regard to its accuracy or to whether it's being selectively leaked or designed to manipulate public opinion. The media can publish such polls without any regulation whatsoever. But when the election writ is dropped, all of a sudden public opinion surveys -- polls -- have to be regulated. Do we have a situation, then, where year in and year out the public can be spun, manipulated, fooled and tricked by fake, misleading and unscientific public opinion polls, but all of a sudden, when we get into an election writ period, the polls have to be accurate, scientific and reported, in terms of all other methodology? Is that what we're saying -- that we're having a system where only during election campaigns do public opinion polls have to be accurately reported?
Hon. C. Gabelmann: Only during the election campaign are there rules around the publication of public opinion surveys. It doesn't necessarily mean that those surveys are accurate, but the methodology needs to be reported so people can make a judgment for themselves as to whether or not they're accurate. We do this during the election campaign period for the same reason and principle that we limit campaign advertising during the election period. That's the time when people are paying attention to the political campaigns and developing their opinions as to how to cast their votes. There are no limits outside the writ period for political parties as to their expenditures, nor are there limits with respect to polling companies outside the writ period. The disclosure is year-round; the limitations are writ-period.
D. Mitchell: I'm not going to belabour this point, but I just want to make one more point to the Attorney General on this. I question whether or not the government is doing the right thing by regulating public opinion polls only within the writ period. I'll give you one example. Recently there was a Marktrend Research Inc. poll that received some exposure through the news media. In the June 30 North Shore News, a newspaper that's circulated in my community, there was a front-page headline in the paper that said: "Survey Predicts B.C. Liberal Win." It printed a chart showing that the Liberals would win because they were considered to be at 45 percent on the North Shore. B.C. Reform was listed as being at 28 percent, and the NDP was listed at 23 percent. This was the
[ Page 16819 ]
result of a Marktrend Research Inc. poll, supposedly. Now, all of the details of this poll weren't reported. The undecided vote, which was extremely significant, was not reported; none of that was reported. A week later, the same newspaper, the North Shore News, published its own survey, not the Marktrend survey, based upon its readership on the North Shore, and it reported that on the North Shore, which comprises North and West Vancouver, going all the way out to Lions Bay, 66 percent were undecided. That hardly jibes with "Survey Predicts B.C. Liberal Win." In fact, under the North Shore News's own survey, the breakdown of decided voters was 19 percent Liberal, 12 percent Reform and 3 percent NDP, with a whopping 66 percent undecided. Clearly, the only party that could win on the North Shore, today would be the undecided party.
Now, I'm not proposing that we form a new party called the Undecided Party, although it has some attractions and probably would reflect public opinion. The point I'm trying to make to the Attorney General is that these kinds of polls can be extremely misleading. They happen year in and year out. Why would we want to regulate these polls only once the election writ is dropped, not prior to that? People are confused and misled by the publication of these kinds of polls that only release part of the information. Who knows whether it's a pollster shopping for a new client and releasing these polls for that purpose or for whatever other reason? These kinds of irresponsible, misleading public opinion polls probably need to be cracked down upon on a year-in, year-out basis, not only during election periods.
[11:30]
I want to know why that was rejected. Why did the government reject that kind of approach? Why is it that we want to tolerate and even encourage this kind of irresponsible release, through the media, of misleading public opinion surveys?
Hon. C. Gabelmann: The straight answer to that is because this is an election act. This is not an act governing the publication of polling. I'm not interested in using the Election Act to achieve another purpose, which is the professionalism and manner in which polls are both taken and reported.
The only thing that concerns me about the member's comments is this high number of undecided voters. If people really are undecided, the frightful fear one would have as the result of that is that the only party in my memory that is always undecided about every issue is the Liberal Party. This concerns me about the way the election might go. So I'm hopeful that before the election day the number of undecided will have dropped considerably, because if it does, then the undecided will have nowhere.... Only the undecided can go to the Liberal Party. I think they'll come down.
Interjections.
Hon. C. Gabelmann: On election day, when everybody is decided, there will be none left for them.
G. Wilson: I'd like to pick up on the point from the member for West Vancouver-Garibaldi. I think that of all the concerns within the Election Act, one of the most interesting is that we've crafted a piece of legislation -- notwithstanding our differences on how it has come about -- to try to curb election spending, to make sure that there is proper reporting of the money, to put in place restrictions on third-party advertising, as we're getting into in this section, and to govern public opinion polls. I'm of the opinion that it really doesn't matter, in large measure.... We have strong evidence to suggest how much money people spend. That doesn't necessarily win the election, and I think we've got very strong evidence of that.
If you are involved in this process, one of the most difficult issues to overcome is to have biased information put out as fact, to have inaccurate information put out as fact and to have media sources or advertisers put information before the electorate -- whether it's during the writ period or between writ periods -- that is not factually correct. One of the issues that I would take up with this Marktrend Research poll is that the poll simply asks respondents: "If an election were called today, would you vote for Liberal, NDP or Reform?" Those are not the only three options in front of the people of British Columbia. [Laughter.]
I hear the Liberals laughing. The member for Surrey-White Rock should remember the day when the Liberal Party couldn't get asked onto a public opinion poll and how difficult it was to get that information forward, how tough it was to battle to get onto the televised debate that got them the seats they have today. They should remember that, because I'll tell you something: the most difficult problem to overcome in public opinion reporting....
Let's be sure: the reason they chortle so heartily now is because of the principals behind the Marktrend polling company, who we all know to be anything but neutral in this process and who in fact are directly involved in support of the Liberal Party. Let's not try to pretend that when we go to the public, that is anything other than a market survey. That's what they do: market research. What public opinion companies do is craft public opinion polls to assist marketing agencies; that's what they do. This is not an academic, scientific, social science survey that is trying to deal with a process in a neutral sense -- not at all. And let's not even pretend that it is. If we do, we're doing a disservice to every voter out there. The reason there is such a high undecided vote is best described in Raeside's cartoon on the next page, where the pollster is asking: "The choices are Mike Harcourt, NDP; Jack Weisgerber, Reform; Gordon Campbell. If an election were held next week, what would you do?" And the response is: "Emigrate." That's the best answer, from our perspective.
W. Hurd: The member for Powell River-Sunshine Coast has turned this debate into a charade. He knows full well that nothing he's been talking about for the last five minutes remotely relates to section 227. I would point out that he needs direction from the Chair to return to something resembling relevancy in debate.
The Chair: Thank you for your remarks, hon. member. I would refer all members to standing order 61(2): "Speeches in Committee of the Whole must be strictly relevant to the item or clause under consideration." I don't emphasize that caution to any single member of this chamber, but to all -- many of whom have chosen to speak this morning.
[ Page 16820 ]
G. Wilson: I am not sure what bill the member for Surrey-White Rock thinks we're debating, but we're debating the Election Act. We're on section 227, dealing with election opinion surveys, and I'm talking about election opinion surveys. So I'm directly relevant....
W. Hurd: Both the member for West Vancouver-Garibaldi and the member for Powell River-Sunshine Coast are addressing public opinion surveys published outside the writ period. It's totally out of order, Mr. Chairman. I would urge the Chair to bring the members to heel and advise them that we can only deal -- under my interpretation of section 227 -- with polls published during the writ period.
The Chair: Members, I would caution you all to tie your comments to the section at hand, not to matters irrelevant to the section at hand.
G. Wilson: The reason we are talking about public opinion polls outside the writ period is that this definition only covers election opinion surveys within the writ period. We need to expand our discussion to include those kinds of influencing polls that run up to an election period.
The Chair: Hon. member, if you wish to make that suggestion, I would suggest you make an amendment. But it is not relevant to this section at hand. This is an election act, as the hon. Attorney General pointed out earlier this morning.
D. Mitchell: When I initially broached this subject with the hon. Attorney General, the question, which is most relevant to the work of this committee this morning, was why this particular definition of an election opinion survey is included in this bill. We are on the definition section, which is so crucial to this whole division of the act. I don't know why my friend the member for Surrey-White Rock is sensitive to this. Maybe it's because the Liberals are temporarily ahead in the polls. I don't know. We're not in the election writ period, that's true.
Maybe we should be asking the hon. Attorney General whether he would entertain a friendly amendment to this section, which would seek to do exactly what the Election Act is doing with respect to election opinion surveys but would apply those regulations not only to opinion surveys during an election period but also to opinion surveys throughout the year -- 365 days a year. If he would entertain such an amendment, great. I'd be willing to move such an amendment. If the hon. Attorney General is not willing to entertain such an amendment, could he explain why?
Hon. C. Gabelmann: The answer is no, and the reason is that this is an election act; this is not a publication and rules-governing-polling act.
G. Wilson: Notwithstanding the fact that this act includes other things outside the writ period, let's just stick with the writ period. That seems to be the sensitivity of the members here. I find it interesting that when we hit on issues that are sensitive, how quickly we fall to the rules to try and keep ourselves on a very straight and narrow level of debate.
The point I'm making here is that whether it's outside or inside the writ period, if a public opinion poll is stated -- as the member for West Vancouver-Garibaldi has correctly pointed out.... I could take a couple of seconds and go and get you polls that were done in the Abbotsford by-election, which do not ask respondents about political parties outside of those that, in the general theme of media coverage, are decided to have an opportunity to win. That is inaccurate; it's a distortion of the fact. What we're curious about within this definition in terms of opinion surveying is not just whether or not you report what the sample size is, who paid for the poll, what the margin of error is and so on; there has to be an accurate description of those individuals who are contesting the election. There is no better way to do disservice to the public than if, in the provision of those reports, you consistently ignore choices that the public.... It may be only 1 percent or 2 percent or 5 percent or 9 percent or whatever the percentage is. The fact is that you should not publish a graph, as has been published in this way here, that shows only three options.
When I was the leader of the Liberal Party, I fought tooth and nail to stop them from publishing only two options. The fact is that in this legislative chamber right now, there are five political parties represented. Therefore each of those political parties, as represented in this chamber, should have an equal opportunity to be covered before the public. That is only fair to the public. It's what the public demands. I find it incredible that the Liberal Party, now that they're ensconced in the opposition, would try to deny others that kind of free access and democratic process.
Hon. C. Gabelmann: That is one of the reasons that we have included the requirement that there be disclosure of the polling. People need to know what the questions were. If the questions allowed you to indicate only one political party as your choice, and the polls were published saying that that political party led, it would obviously be distorted. So the public needs to know what the questions were. If the polling asks only about three parties and not the fourth, fifth, sixth and others, then the public needs to know that. They will know that there has been a canvassing of public opinion about that party. It may result in a zero response, or it may result in 1, 2 or 3 percent or some other number, but the public needs to know that that question was asked. Otherwise, they have no way of knowing whether or not the results were fairly obtained. So we simply say that the questions have to be published.
There has been a storm in the media about that requirement, which baffles me and obviously baffles the member for Powell River-Sunshine Coast. I can't believe that anybody in this House would oppose a requirement that the public be informed as to what the questions were before the results are published, because the questions determine everything. If the public don't know what the questions were, they have no way of knowing the validity of the answers. It seems like common sense to me, and I would expect full and unanimous support for these provisions.
C. Serwa: With respect to the minister's comments about the election opinion survey, once again I hear this concept of bent principles or flexible principles from the minister and from the government. I listened to the minister indicate that this is an election act, and therefore that is the only time period when the minister or this act should control public opinion polls, although all sorts of other ingredients in this particular act apply to political parties throughout the year. Contributions, for example, are not simply within the writ period, but throughout the year; and a leadership contest, for example, is
[ Page 16821 ]
not in the election period, but at other times of the year. So there again, I fail to understand any systematic logic or approach to this. Perhaps the minister will explain.
[11:45]
Hon. C. Gabelmann: It's because political parties are in the business of contesting elections. It may be that there have been so-called political movements that were not interested in running candidates, but if that occurs, I can't.... Even the CCF contested elections. So the organizations are in the business of contesting elections. This is an election act. Polling companies are in the business of doing a wide variety of things -- most of which, frankly, have nothing to do with elections and therefore should not be governed by an election act. But when their activities impact on an election campaign, then they should be governed. I think it is consistent.
J. Tyabji: Just quickly on this definition of survey, I note that it talks specifically about an opinion survey respecting an issue discussed in the election or something that's in relation to the election. The definition of opinion survey doesn't talk about the writ period, so our understanding is that that's going to come out in further sections. But in the definitions section, what seems to be implied, anyway, is that a poll, survey or marketing report -- as was reported in the North Shore News, which was discussed earlier -- obviously speaks directly to the election. Obviously, that's what it's about. That's what the headline is. It's talking about a win in the election. It's talking about an election that hasn't been called yet.
The other members have talked to the Attorney General and asked why it has been such a narrow focus, but it would seem quite clear to me that the definition itself isn't limiting. The definition is not saying within the four-week writ period; the definition says anything talking about an election. I understand that the Attorney General has said that this is an election act, so we're only talking about elections. For the purposes of this act, any time something is published about an election, whether the election has been called or not, it would still fall within this definition. If that's the potential reading, is it something that's only going to be limited by regulation? I know other sections are specific, but just for this definition.... For example, would we be able to go to our local paper and say: "The Election Act's definition is clear that if you're talking about the election, we would like the following provisions"? The Attorney General is saying no. I don't know why it would be so limited.
Notwithstanding what the media may have said -- their job is to fight for their own interests -- the polling companies are clearly going to be angry if they're out to market. Polling companies interested in social sciences don't care if they have to provide the statistics for the media outlet, because that's what they do. People should be aware that any polling company that speaks out against providing the data or parameters of their poll is interested in marketing, not polling. If they're interested in polling.... You could sit down with social scientists, and they will give you long lectures about how it makes a difference whether you have this sample size or that sample size, or what the demographic factors are going to do to the outcome of the poll. A social scientist is happy to provide those details and in fact will probably give more details than anyone would want. It's only marketing companies that are going to be upset if they're going to be limited.
Given that, why would the Attorney General be prepared to focus on something so narrow that even those of us who want to provide guidelines for our local newspapers are not able to do that?
Hon. C. Gabelmann: First of all, under section 234 it's clear that we are talking about the writ period and that's all. I'm going to say it again. If a political party today decided to buy full-page ads in the papers and have a television campaign promoting their party, they could do so and they would be outside the limits that are imposed for campaigns. The reason is that the public does not perceive that this is the election period. It's not technically the election period, and in our view there's no need -- maybe someday it will come; I doubt it -- at this point to regulate election expenditure or election polling in a non-election period. We have been consistent with other jurisdictions in the country on this issue and, I think, with what the public would expect.
D. Mitchell: In the definition of an election opinion survey, can the Attorney General tell the committee whether or not any consideration was given to the Canadian Daily Newspaper Publishers' Association guidelines on the publication of technical information on polls? The reason I ask that question is that we're trying to come to terms with how this definition was put into the bill and what kinds of considerations the government used when coming to this definition. I would point out to the hon. Attorney General that most media and news organizations in Canada do not even meet the Canadian Daily Newspaper Publishers' Association guidelines with respect to public opinion polling. Were those guidelines on technical information considered?
Hon. C. Gabelmann: Yes, they were, by way of Lortie. Lortie looked at those issues exhaustively, and we looked at Lortie in framing this.
Hon. D. Miller: I've listened to some of this debate with interest. It's obviously an important topic: an act that governs the electoral process. I'm struck by a few things. At the risk of venturing opinions in seeking answers, I hope there's some latitude here.
Having participated as both a candidate and an election worker for longer than I care to remember -- but quite a few elections -- and having participated in the whole electoral and democratic process over a good number of years, there's no question that despite the differences in political parties, we all essentially do the same kinds of things. In the comments that I've received from members of the public in the various elections that I've run in and that I have helped others run in, I've been struck by what I consider to be a bit of a mood, if you like, in the electorate. I know that it's fashionable for people to stand up in the guise of democracy and of free speech and make grandiose statements about what we should have and what we shouldn't have, but I wonder if sometimes we lose sight of the electorate themselves.
Quite frankly, more and more in our society, which is becoming much more complex, the electorate has a difficult enough time trying to sort out fairly complex issues, particularly during an election period. My question....
[ Page 16822 ]
C. Serwa: Point of order. That's very interesting second reading dialogue or debate. I notice that the Chair was very quick to chastise members when they were not speaking strictly to the section. Perhaps the Chair was not listening as closely as the Chair ought to have been.
The Chair: I thank the member for his comments. I'm sure the minister will take those comments under advisement and consider them in winding up his remarks.
Hon. D. Miller: My question, before I was interrupted, was that surely there should be some consideration given to the electorate. Why do we allow, if you like, the electorate to be pestered incessantly as though they have no mind of their own? Here we are debating how many angels can dance on the head of a pin, about opinion polls. Leave the electorate alone. Let them take the time to reflect during a campaign, because, quite frankly, during a campaign all of us are self-serving. All of us have our own motives, right? To say we're altruistic is a bit of a stretch.
My personal opinion is that there should be no public opinion polls during an election campaign -- absolutely none. I don't care if the media don't like it, because I think the media are as self-serving as the politicians. So my question is: why do we allow any of this during an election campaign?
Hon. C. Gabelmann: Well, among other things, it's because the executive council took a decision that this would be the position in this bill.
W. Hurd: I'm glad the Minister of Skills, Training and Labour talked about the electorate of the province being pestered, because I note that the government is in the midst of a $10 million advertising campaign. That leads me nicely into another series of questions about section 227. It's about whether the government itself is in any way affected by the election advertising definition under section 227.
The Attorney General will be aware that his government commissioned a review of the Election Act. That review by Jeffery Hoskins pointed out that the current draft of the bill does not include a provision restricting government advertising during an election campaign.
J. Weisgerber: A point of order. Surely to goodness this member, who was just on his feet a few minutes ago calling for us to focus our debate on the section in front of us, doesn't have such a short memory that within two or three minutes he finds himself absolutely off topic. Perhaps if the member had left the chamber briefly.... Section 227 hasn't passed yet. We're still dealing with section 227.
The Chair: That is an excellent point, and I would caution all members to try to restrict their remarks in accordance with standing order 61(2): "Speeches in Committee of the Whole must be strictly relevant to the item or clause under consideration." I do not intend, nor is it my practice, to interfere unnecessarily in debate, but given the hour, it would be very nice if members could seriously reconsider that rule and listen carefully to my words.
D. Mitchell: I'm not sure why the Attorney General hasn't taken greater account of his colleague the Minister of Skills, Training and Labour in terms of the representation he has made. We can't know, we will not know, we never have an opportunity to know what happens in cabinet, but it's interesting to note that there was a small rift there on this important issue -- at least a small rift on this particular issue.
Noting the progress we've made this morning and the lateness of the hour, I wonder if we have an opportunity to get to an amendment before we adjourn for lunch.
W. Hurd: I would welcome direction from the Attorney General with respect to the government's role in election advertising. If he can assure me that the matter can be and, more appropriately, should be raised in a later section, I'd welcome the opportunity to engage in that debate. I'm not too sure what section that might be.
Hon. C. Gabelmann: The member will soon have an opportunity to find out.
J. Dalton: Well, obviously the AG ducked that very excellent question of my colleague, because there is no section -- other than the ones that the Leader of the Third Party and I are going to bring forward later. It won't be right now.
I've just got two points to make about section 227. Number one, we know -- the Attorney doesn't want to talk about it, but we'll get to it more specifically later -- that the provision dealing with election advertising is unconstitutional. It's a disgrace that this AG brings forward an item in a bill that is clearly not going to fly in the courts.
Secondly, his amendment contribution, which we debated earlier and which is now part of this section, is so vague, uncertain and imprecise that it's not going to fly, either. In fact, none of this part 11 is going to fly. It's going to crash and burn, just like this government is going to crash and burn -- and thankfully. That's all I have to say.
[12:00]
Section 227 28 as amended of Bill 28 approved on the following division:
|
YEAS -- 29 | ||
|
Dosanjh |
Cashore |
Zirnhelt |
|
Charbonneau |
O'Neill |
Garden |
|
Hagen |
Hammell |
Lortie |
|
Giesbrecht |
Miller |
Cull |
|
Gabelmann |
Ramsey |
Sihota |
|
Evans |
Farnworth |
Conroy |
|
Doyle |
Janssen |
Lord |
|
Jackson |
Copping |
Hartley |
|
Boone |
Hanson |
Weisgerber |
|
Neufeld |
|
Fox |
|
NAYS -- 13 | ||
|
Dalton |
Reid |
Hurd |
|
Serwa |
Mitchell |
Wilson |
|
Tyabji |
Chisholm |
de Jong |
|
van Dongen |
Symons |
Anderson |
| Jarvis | ||
[ Page 16823 ]
Hon. C. Gabelmann: I move the committee rise, report progress and ask leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. C. Gabelmann moved adjournment of the House.
Motion approved.
The House adjourned at 12:07 p.m.
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