BILL C-3: AN ACT TO AMEND THE CANADA ELECTIONS
AND THE INCOME TAX ACT
Law and Government Division
12 February 2004
Revised 18 May 2004
LEGISLATIVE HISTORY OF BILL C-3
|HOUSE OF COMMONS
||10 February 2004
||1 April 2004
|Referred to Committee:
||18 February 2004
||22 April 2004
||12 March 2004
||6 May 2004
|Report Stage and
|26 March 2004
|| 31 March 2004
||13 May 2004
| Royal Assent: 14 May 2004
Statutes of Canada 2004, c.24
Any substantive changes in this Legislative Summary which have been made
since the preceding issue are indicated in bold print.
TABLE OF CONTENTS
DESCRIPTION AND ANALYSIS
B. Anti-abuse Measures
BILL C-3: AN ACT TO AMEND THE CANADA ELECTIONS ACT
AND THE INCOME TAX ACT*
Bill C-3, An Act to amend the Canada ElectionsAct and the
Income Tax Act, was introduced in the House of Commons by the Leader of the
Government in the House, the Hon. Jacques Saada, P.C., M.P., and received
first reading on 10 February 2004.(1)
After completing all stages in the House and Senate, the bill was given
Royal Assent on 14 May 2004.
The bill had originally been introduced in the House of Commons
as Bill C-51 in the 2nd session of the 37th Parliament
on 2 October 2003 by the then Leader of the Government in the House, the Hon.
Don Boudria, P.C., M.P. It did not receive second reading before Parliament
was prorogued on 12 November 2003.
The bill has two main objectives:
Bill C-3 was introduced in response to the decision of the
Supreme Court of Canada in Figueroa v. Canada (Attorney General),
2003 SCC 37. Miguel Figueroa is the leader of the Communist Party of Canada,
which was founded in 1921, and had been registered as a party under the Canada
Elections Act since party registration began in 1974. In the 1993 federal
general election, however, the party lost its status as a registered party,
and all of the associated benefits, because it failed to nominate at least
50 candidates. As a consequence of deregistration, the party was forced to
liquidate its assets, pay all its debts, and remit the outstanding balance
to the Chief Electoral Officer. Several other parties were deregistered at
the same time, and for the same reason.
Mr. Figueroa, on behalf of the members of the Communist Party
of Canada, commenced an action against the Attorney General seeking a declaration
that several provisions of the Canada Elections Act infringed various
provisions of the Canadian Charter of Rights and Freedoms and were,
therefore, of no force and effect. The original decision was rendered on
10 March 1999 by Madame Justice Molloy of the Ontario Court of Justice (General
Division). She held that the requirement that a party must nominate at least
50 candidates in order to be a registered political party in federal elections
violated section 3(2) of the Charter and
could not be saved by section 1. She ordered that the relevant provisions
be amended by changing the word “fifty” to “two.” She also struck down the
prohibition against identifying on the ballot the party affiliation of candidates
who were not endorsed by a registered political party as contrary to section
The Attorney General appealed this judgment and, in August
2000, the Ontario Court of Appeal delivered its decision. Writing for the
unanimous Court, Mr. Justice Doherty held that the purpose underlying the
right to stand for election in section 3 of the Charter was effective representation.
Political parties enhance effective representation by: structuring voter
choice; providing a vehicle for public participation in politics; and giving
the voter an opportunity to be involved in the process of choosing the government
of the country. The judge noted that these roles require a significant level
of involvement in the electoral process. Some meaningful level of participation
is, therefore, properly a prerequisite condition to eligibility for the benefits
available to registered parties, and the number of candidates is a legitimate
means of measuring that participation. Although reasonable people might differ
on the specific measure or number, the Court found that the 50-candidate requirement
was within the bounds of reasonableness. It also rejected Mr. Figueroa’s
arguments that the 50-candidate requirement infringed sections 15 (equality
rights) and 2(d) (freedom of association) of the Charter.
Mr. Justice Doherty, however, went on to hold that the sections
of the Canada Elections Act which provided that only registered parties
may have party affiliation listed on the ballot violate the right to vote
in section 3 and are not justifiable under section 1 of the Charter. The
right to vote contains an informational component, and the listing of party
affiliation on the ballot is an important piece of information for voters.
Although the provisions of the Act seek to avoid confusing or misleading voters,
it did not follow that, because a political party nominated 49 or fewer candidates,
the listing of party affiliation on the ballot would mislead or confuse the
voters. In fact, for smaller parties, it may provide the only information
that the voter has about that particular candidate. These provisions of the
Act were, therefore, declared invalid, but that declaration was suspended
for six months to allow Parliament a reasonable opportunity to amend the legislation.
(Because of the dissolution of Parliament for the 27 November 2000 federal
general election, Parliament did not sit very much during the six months.)(3)
The decision was appealed to the Supreme Court of Canada.
In June 2003, the Supreme Court ruled that the 50-candidate threshold was
unconstitutional under section 3 of the Charter. Writing for the majority,
Mr. Justice Iacobucci explained that the 50-candidate minimum diminished a
citizen’s right to play a meaningful role in the electoral process by denying
political parties who run less than 50 candidates the right to issue tax receipts,
the right to receive unspent election funds and the right to have the party
affiliation listed on the ballot.
The Court ruled that withholding the right to issue tax receipts
and retain unspent election funds from candidates of parties that have not
met the 50-candidate threshold undermines the right of citizens to meaningful
participation in the electoral process. The Court reasoned that the candidate
threshold infringes section 3 “by decreasing the capacity of members and supporters
of the disadvantaged parties to introduce ideas and opinions into the open
dialogue and debate that the electoral process engenders.”(4)
Furthermore, the Court ruled that withholding the right to list party affiliations
on ballots also infringes on section 3 because it undermines the right of
citizens to make an informed choice. The Supreme Court suspended the decision
for twelve months, until 27 June 2004, to allow Parliament the opportunity
to amend the legislation.
The legal recognition and registration of political parties
is a relatively recent development. Registration was introduced in the early
1970s as part of various changes to Canada’s electoral legislation, although
the Canada Elections Act currently does not attempt to define or describe
a political party.
To register, under existing electoral law, a political entity
can file an application for registration signed by the leader of the party
and containing certain information. The basic requirements are relatively
simple to satisfy; for instance, each party is required to have an auditor
and a chief agent. Under the Act, the names, addresses, occupations and signatures
of 100 electors who are party members must accompany each application; the
intent of this requirement is to ensure that the party has a certain minimum
level of support. On receipt of the application for registration, the Chief
Electoral Officer is required to examine the application and determine whether
the party has complied with the requirements for registration. There are
certain prohibitions against registration in the Act: for instance, if the
name of the party, its abbreviation or a party logo could be confused with
that of a party that has already been registered, the application will be
refused. If the application is in order, registration will be subject to
the following condition: the party must nominate at least 50 candidates in
the next general election. Failure to nominate 50 or more candidates in a
general election results in mandatory deregistration, even if the party meets
all the other requirements of the Act. It should be noted that the requirement
is only for a certain number of candidates to be nominated, not that
they be elected or receive a certain minimum percentage of voter support.
Another key point is that political parties are not required
to register under the Canada Elections Act, i.e., unregistered political
parties can participate in elections. Upon registration, various provisions
of the Canada Elections Act apply, such as the need for the party to
file certain reports. Failure to comply with any of these provisions, or
certain others, can lead to deregistration.
Registration, however, does convey significant benefits and
opportunities to a party. For example, only registered political parties
are entitled to:
Registration also currently gives parties the exclusive right
to have their candidates identified – on ballots – as belonging to the party.
Until 1970, election ballots listed candidates’ name, address and occupation.
There was no provision for identifying their political affiliation; therefore,
before entering the voting booth, a voter had to know which candidate represented
a particular party. There was great scope for voter confusion, both inadvertent
and sometimes consciously planned by candidates – for example, where candidates
with similar names ran in the same riding. The law was changed in 1970 to
allow candidates’ political affiliation to be shown on the ballots and to
delete their address and occupation. Not only did these changes assist voters,
they also accorded better with the reality of modern political campaigns.
The changes coincided with the enactment of a new Canada Elections Act
which, for the first time, formally recognized political parties.
DESCRIPTION AND ANALYSIS
Pursuant to the judgment of the Supreme Court of Canada,
Bill C-3 changes the registration requirements for political parties. The
first clause of Bill C-3 adds the definition of a “political party” to the
Canada Elections Act. According to the definition, a political party
is an organization “one of whose fundamental purposes is to participate in
public affairs by endorsing one or more of its members as candidates and supporting
Clause 2 amends section 117(2) of the Canada Elections
Act by stating that the name of the political party that has endorsed
the candidate shall be listed on the ballot under the name of the candidate,
if the party is a registered party. This amendment eliminates the requirement
that a party have candidates in a minimum of 12 electoral districts in a general
election. The Supreme Court of Canada ruled the minimum requirement unconstitutional.
Parties that fail to run a single candidate in a general election, however,
will be automatically deregistered.
Clause 3(3) amends the requirements for application for registration.
Under the proposed new section 366(2)(i), parties are required to submit the
names and addresses of 250 electors and their declarations, in the prescribed
form, that they are members of the party and support the party’s application
Under proposed new section 366(2)(j), parties are required
to submit with their application a declaration stating that one of the party’s
fundamental purposes is to participate in public affairs by endorsing one
or more of its members as candidates and supporting their election. Clause
3(4) permits the Chief Electoral Officer to ask the party leader to provide
any relevant information to confirm the purpose of the party.
Clause 4 modifies section 368 of the Canada Elections
Act. It states that a party becomes eligible for registration
once it has at least three officers in addition to its leader and has appointed
a chief agent and officer, and the Chief Electoral Officer is satisfied that
the information provided under section 366(2) is accurate.
Under proposed section 370, an eligible party becomes a registered
party if it has at least one candidate whose nomination has been confirmed
for an election and its application to become registered was made at least
60 days before the issue of a writ for that election. Should an eligible
party submit an application after that 60-day period, it will become registered
for the next general election, or any by-election that precedes it, provided
it satisfies the requirements for registration.
Clause 15 adds to section 384, which deals with the yearly
confirmation of registration. It requires that registered and eligible parties
provide the Chief Electoral Officer with the names and addresses of 250 electors
and their declarations that they are members of the party. Parties must submit
this information every third year, beginning in 2007. Each year, the leaders
of registered and eligible parties must submit a confirmation that one of
the fundamental purposes of the party is as described in section 366(2)(j).
B. Anti-abuse Measures
Bill C-3 protects against abuse of the new registration provisions.
For example, it makes it an offence to knowingly make false statements in
relation to the registration of a party. Clause 16 states that no political
party or party leader shall provide the Chief Electoral Officer with information
they know to be false or misleading. According to clause 22(2), if a person
is convicted of an offence under the Act that results directly or indirectly
in financial benefit, the court may order the person to pay to the Receiver
General an amount that is not more than the financial benefit. Should a registered
party, its chief agent or registered agent or one of its officers be convicted
of an offence relating to providing false or misleading information, clause
22(3) grants the courts the power to order deregistration and the liquidation
of the party’s assets.
Clause 17 protects against the solicitation or receipt of
a contribution on behalf of a registered party, registered association or
candidate if the contribution would be transferred to a person or entity other
than the registered party, candidate, leadership contestant or electoral district
association. This provision defends against a political party falsely created
as a front to feed money elsewhere.
The bill also contains provisions regarding deregistration.
Proposed new section 385.1(1) states that a party will be deregistered if
it fails to endorse a candidate in a general election. A party could also
be deregistered if the Chief Electoral Officer is not satisfied that a registered
party is in compliance with the minimum membership condition or the stipulation
that a party must have three officers in addition to the leader.
Clause 23 amends section 521 of the Canada Elections Act
by adding rules regarding judicial deregistration. If there are reasonable
grounds to suspect that a registered party does not have participation in
public affairs – identified as endorsing and supporting at least one candidate
in an election – as a fundamental purpose, the party will be notified. If
the party fails to show that participation in public affairs is one of its
fundamental purposes, and a court is satisfied that the purpose of participating
in public affairs is not met, the court shall direct the Chief Electoral Officer
to deregister the party, which may include the liquidation of assets. The
court’s decision will be based on factors relevant to determining the party’s
purpose, including the party’s constitution, political program, annual report
to members, the nature and extent of its activities, its use of funds, and
whether the party is a non-profit entity.
Clause 25 ensures that any political party that has an application
for deregistration pending is prohibited from issuing a tax receipt unless
the application is withdrawn or dismissed.
Clause 26 adds a sunset provision to the legislation. This
stipulation states that amendments made to the Canada Elections Act
by Bill C-3 will cease to have effect two years after the day on which Bill
C-3 comes into force or, if Parliament is not in session, 90 days after the
beginning of the next session. This section was added at the committee stage
in order to accommodate some of the concerns raised before the Committee.
In the Figueroa decision, the Supreme Court of Canada
made it clear that the 50‑candidate threshold infringes on section 3
of the Charter of Rights and Freedoms by denying candidates and their
supporters the opportunity for meaningful participation. Mr. Justice Iacobucci,
writing for the majority, explained that while section 3 grants only a right
to vote and to run for office, it was necessary to look beyond the words of
the section and adopt a broad interpretive approach. The majority of the
Court decided that the purpose of section 3 is, in fact, effective representation
and should be understood as meaning that each citizen has the right to play
a meaningful role in the electoral process, rather than meaning the election
of a particular form of government.
Mr. Justice LeBel, writing for the minority, agreed that
the 50-candidate threshold violated an individual’s right to meaningful participation.
He also noted that competing in elections to gain a position in the legislature
is one of the main functions of political parties. Although he did not offer
justification for maintaining a requirement to nominate a large number of
candidates, he concluded that:
of nominating at least one
candidate, and perhaps more, in order
to qualify for registration as a party would not raise any serious constitutional
concerns. … Nominating candidates and competing in the electoral process
is fundamental to the nature of parties as opposed to other kinds of political
associations, such as interest groups.(5)
During the debate on Bill C-51, the Hon. Don Boudria explained
that the bill was meant to strike an appropriate balance between fairness
to parties and the need to preserve the integrity of the electoral system.
The registration requirements are meant to ensure that registered parties
are genuine participants in the process. The main issue raised by the opposition
parties was the failure of the government to act on the 50-candidate threshold
until prompted by the Supreme Court decision and the effect of the candidate
threshold on fringe parties.
Bill C-3 was referred to the House of Commons Standing Committee
on Procedure and House Affairs before second reading on 18 February 2004.
In his appearance before the Committee, Mr. Miguel Figueroa, on behalf of
the Communist Party of Canada, indicated his general satisfaction that most
of the provisions of Bill C-3 are consistent with the Supreme Court’s decision,
but noted that the Party did have some concerns with specific aspects of the
bill. Mr. Figueroa shared his apprehension over the proposed penalty provisions
of the bill that allow for deregistration and the liquidation of a party’s
assets, should it commit an offence relating, directly or indirectly, to financial
abuse. He also noted his anxiety over the power of a court, when examining
an application for judicial deregistration, to consider factors such as a
party’s political program, advertising material and policy statements when
deciding whether a party has as its fundamental purpose the participation
in public affairs.
When the Chief Electoral Officer, Mr. Jean-Pierre Kingsley,
appeared before the Committee, he indicated his discomfort with the inclusion
of the definition of a political party. According to Mr. Kingsley, this would
mean the Chief Electoral Officer would need to go beyond looking at facts,
such as the number of candidates nominated by a party, to questioning the
purpose and non-financial activities of political parties. Although he made
it clear to the Committee that his Office was capable of implementing the
legislation as it is currently drafted, he suggested two alternatives. One,
which the Chief Electoral Officer described as having considerable merit,
was the removal of the definition of a political party along with the administrative
and enforcement requirements. The other proposed revising the legislation
to grant eligible parties that run between 1 and 49 candidates the three benefits
stipulated by the Supreme Court – specifically, the right to issue income
tax receipts, the right to have the party name on the ballot, and the right
to receive a candidate’s surplus – but no others.
The debate on Bill C-3 in the House of Commons revealed that
the opposition parties supported the bill in principle. Many opposition Members
stated that although they had reservations about it, they understood the importance
of having legislation in place before 27 June 2004, the deadline set
by the Supreme Court. The main concerns expressed were in relation to the
definition of a political party contained in the bill, and the low candidate
threshold. Regarding the definition of a political party, some Members identified
difficulties with the ambiguity of the phrase “participate in public affairs.”
Furthermore, Members echoed the concerns of Mr. Kingsley, noting that it was
unfair to expect the Chief Electoral Officer, an independent officer of Parliament,
to interpret the affairs of a political party to ensure that a party has participation
in public affairs as its fundamental purpose. Concerning the threshold, Members
voiced their concern over the reduction of the candidate minimum to one, fearing
that this low threshold would allow organizations that are not serious about
participating in the political process to raise money and issue tax receipts.
The same issues arose in the Senate during debate and
in committee. Bill C-3 was referred to the Senate Committee on Legal and
Constitutional Affairs on 22 April 2004. In committee, the Senators
heard from a number of witnesses, including academics and representatives
of some of the smaller parties that are likely to be affected by the change
in registration requirements. Additional issues arose from this testimony,
such as the impact of the Figueroa ruling on other provisions of the
Canada Elections Act, specifically in the area of the financing
of political parties with public funds. The witnesses asserted that since
the court found one threshold unconstitutional, there is the chance that other
thresholds may also be found unconstitutional. The Committee also heard that
the passage of Bill C-3, in all probability, will increase the number of registered
political parties. This could have an impact on the benefits extended to
registered parties, such as free broadcast time. It will be important for
Parliament to consider these issues when it examines electoral legislation
in the next Parliament.
For clarity of exposition, the legislative proposals set out in the bill
described in this Legislative Summary are stated as if they had already
been adopted or were in force. It is important to note, however, that bills
may be amended during their consideration by the House of Commons and Senate,
and have no force or effect unless and until they are passed by both Houses
of Parliament, receive Royal Assent, and come into force.
(1) By a motion adopted
on 10 February 2004, the House of Commons provided for the reintroduction
in the 3rd session of government bills that had not received
Royal Assent during the previous session and that died on the Order Paper
when Parliament was prorogued on 12 November 2003. The bills could
be reinstated at the same stage in the legislative process as they had reached
when the 2nd session was prorogued. Bill C-3 is the reinstated
version of Bill C-51, which died on the Order Paper.
(2) Section 3 of the
Canadian Charter of Rights and Freedoms provides as follows:
3. Every citizen of Canada has the right to vote
in an election of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
(4) Figueroa v.
Canada (Attorney General), 2003 SCC 37, at para. 53.
(5) Figueroa v.
Canada (Attorney General), 2003 SCC 37, at para. 149.