SENT: Wed 7/20/2011
TO: (Green Party Sask) Larissa ; Amber; Penny
CC: (Green Party Canada) Johan; Robert
NOTE for Federal Party: “FYI”.
For Saskatchewan Greens, the failure of the Government to refund election deposits is a cost of about $10,000 between the 2007 and 2011 elections. The Government keeps the money when it should be returned to the Party, legal precedent established by the Supreme Court of Canada (Federal Greens).
The refund of election deposits is not an issue
- in Ontario
- in PEI
- I don’t know about B.C.
- I don’t know the outcome of Alberta’s efforts in 2008 (ref below).
Action to obtain remedy in Sask was started in 2007, it’s on-going.
The provinces that had a Provincial Green Party Leader were informed of our efforts (2008).
We hoped that we could get the rules changed for all the provinces (without court action), on the heels of the success of the Federal and Ontario Greens in Court, who worked with lawyer Peter Rosenthal.
If you happen to be talking with other provincial Green Parties, you might like to let them know of this next development. Thanks. /Sandra
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– It is proposed that the legal challenge commence. Efforts to avoid court action have failed. Details in the following.
– In 2007, the lawyer who successfully argued the case at the Supreme Court and in Ontario Court, Peter Rosenthal, was agreeable to doing the Saskatchewan lawsuit.
Please let me know if anything is missing from the following update.
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For the record: (The BACKGROUND FILE is appended at the bottom.)
July 14, 2011: I phoned Justice Minister Don Morgan’s office. Asked for the name of the person who is in charge of the Committee that is supposed to be getting the Election Act changed in order to comply with legal precedents regarding refund of election deposits. I referred to my letter to Morgan, Dec 2007 (scroll down for a copy). And to the fact that Elections Sask recommended in its Report to the Legislature that the Act be changed in order to comply.
Jul 15: Matthew phoned on behalf of the Minister. There will be no change to the legislation. The election deposits will not be refunded unless we get 50% of the number of votes that the winning candidate gets (the existing legislation).
“currently no plans to make the changes and if there were, there won’t be changes until after the election. (I asked about retro-active.) Regarding making the legislation retro-active, they could change “whatever they wanted. It is theoretically possible but I don’t think it will happen.”
I advised Matthew that the Government has had more than three years to make the changes to bring Sask legislation into compliance with the law, that we have done follow-up with them, that Elections Sask told the Legislature about the need for the changes.
It is not acceptable that in three years there has been no action taken. We will be contacting the lawyer and launching legal action.
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DRAFT MEDIA MESSAGING, PRESS CONFERENCE: (has not been issued)
– The Green Party is running a full slate of candidates in the Nov 7 Provincial Election, 58 candidates. That is Five thousand, eight hundred dollars in election deposits.
– $5800 is a significant amount of money for a party that does not accept contributions from corporations or unions.
– The Green Party wrote to the Government of Saskatchewan more than three years ago. We explained that the Supreme Court of Canada ruled in a case involving federal election deposits. The Supreme Court ruled that laws that disproportionately impact smaller political parties, the way the Saskatchewan Election deposit law does, are unconstitutional. We requested that Saskatchewan law be brought into compliance with the Supreme Court ruling.
– Elections Saskatchewan recommended to the Saskatchewan Legislature on April 30, 2009, that the Elections Act be changed because “it would likely be found to violate Charter rights”
– In three years the Government has done nothing. It cost the Green Party $4800 in the 2007 Election. It will potentially cost us close to $6000 this election, a total of approximately $10,000. It is not right.
– On July 15, 2011 we were advised by Matthew (ministerial assistant) on behalf of the Minister of Justice, Don Morgan, that the legislation is not going to be changed before the November election. If the law is changed after the Election, they will not likely retro-actively refund Election deposits. What they are doing is unconstitutional. It is not consistent with healthy democracy.
– We, the Green Party, tried to work out a solution so that it would not cost the tax-payers of Saskatchewan an unnecessary court case. After 3 years and not one bit of progress we have no option now, but to launch a legal challenge.
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ELECTIONS SASKATCHEWAN RECOMMENDATION TO THE SASK LEGISLATURE, APRIL 30, 2009, RE REFUND OF DEPOSITS
From Elections Saskatchewan, cover letter addressed to Saskatchewan Legislature, Speaker Don Toth, dated April 30, 2009. The enclosed “Report of the Chief Electoral Officer, Volume III, Recommendations for Changes to The Elections Act 1996, Twenth-sixth Provincial General Election, November 7, 2007 (http://www.elections.sk.ca/pdfs/OCEO-Volume-III.pdf )
Page 34: “2. Handling and Forfeiture of Deposits [Section 47]
Currently a Returning Officer shall return a candidate’s deposit if the candidate is elected or if the candidate obtains at least 50% of the number of valid votes cast in favour of the candidate elected.
In Figuera v. Attorney General of Canada (1999), the judge struck down as contrary to section 3 of The Charter, federal legislation that required a candidate for election to Parliament to pay a $500 deposit that was refundable if the candidate received 15% of the vote.
In October 2007, in De Jong v. Attorney General of Ontario, the Ontario Superior Court struck down a provision in the Election Act which required candidates to forfeit their $200 nomination deposits if they receive less than 10% of the vote. The provision was stuck down on the grounds that it violates the right to vote guaranteed in the Canadian Charter of Rights and Freedoms. The Attorney General of Ontario has not appealed the case.
Currently in Alberta the nomination deposit is $500.00. Half of the nomination deposit is refunded to the candidate’s campaign if the candidate is elected or if they receive at least half as many votes as the winning candidate. The other half of the nomination deposit is refunded if the candidate’s campaign financial statement is filed on time. Elections Alberta has recommended that the portion of the nomination deposit that is contingent upon the election outcome be eliminated. Canada, Northwest Territories and Nunavut return the entire candidate’s deposit if the business manager or candidate submits the candidate’s financial return on time.
If challenged in court, Saskatchewan’s nomination deposit, that is contingent upon the election outcome, would likely be found to violate Charter rights and therefore should be changed. …. ”
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THE BACKGROUND FILE:
SENT: 3/4/2008 4:07 PM
TO: Various Provincial Leaders of Green Parties, other GP Officials
(Frank de Jong; jane sterk; George Read; Ken McGowan; Sharon Labchuk; scott mckay; holly nelson; Peter Rosenthal; Nick Wright; Jim Harris)
CC: ron yurick; Jeanie Warnock; John Ogilvie; victoria serda; Sanjeev Goel; Amber Jones; Craig Massey; Mike Fornssler; Mike McLeod
Appended: letter sent to Prov Govt to request change to Elections Act
Attached: Response from Govt
Status: Waiting for Elections Sask to convene “post-election” meeting of the provincial political parties, at which time the question will be addressed.
George Reid (leader GPAB), Frank de Jong (GPO Leader), Jane Sterk (leader GPBC), Holly Nelson (leader GPM), Scott McKay (chef PVQ), Ken McGowan (leader GPNS), Sharon Labchuck (leader GPPEI),
… Post Election and re Jim’s Report:
In Alberta the Election law requires a $500 deposit to run as a candidate.
Half of this is refunded when the candidate’s financial returns are filed.
But the other half — $250 – is only refunded if the candidate achieves a certain percentage. This has been declared unconstitutional for federal election deposits in the Figueroa case and the Green Party of Ontario launched a case in 2007 about provincial election deposits not being fully refundable and won! So we’ll be launching a case like this in Alberta. If you want to help fund such a case contact email jim AT greenparty.ca ”
The Saskatchewan work-to-date on refund of deposits may be of use to some of you.
Maybe we don’t have to reinvent the wheel.
Frank de Jong and Peter Rosenthal from Ontario helped us here in Saskatchewan to mount the challenge.
Their support was just great – we were able to submit the letter to the Govt within a week of starting the project!
You might be able to copy and paste ?
LETTER SENT TO THE GOVERNMENT
December 18, 2007
The Honourable Don Morgan
Government of Saskatchewan
Regina SK S4S 0B3
Dear Honourable Don Morgan,
RE: Refund of deposits paid by candidates in an election. Bringing Saskatchewan Elections Act into compliance with recent court rulings
Congratulations on your appointment to the position of Attorney General. Know that the Green Party of Saskatchewan will do its utmost to work with you to protect the public interest in Saskatchewan.
On behalf of the Green Party, I request that you recommend the amendment of the Saskatchewan Elections Act to eliminate part of section 47(3), which reads:
“… an unsuccessful candidate is deemed to have forfeited his or her deposit if he or she does not obtain at least 50% of the number of valid votes cast in favour of the candidate elected.”
This section has cost our party and other smaller parties a great deal of money that thus was unavailable for campaign purposes.
Two Ontario court decisions have held very similar provisions in other elections statutes to be unconstitutional:
(1) de Jong v. Ontario (Attorney General), 2007 CanLII 44348 (ON S.C.)
is a recent decision of the Superior Court of Justice of Ontario that held that a very similar section of the Ontario Election Act was unconstitutional.
(2) Figueroa v. Canada (Attorney General), (1999), 170 D.L.R. (4th) 647 (Ontario Court – General Division) held that a similar section of the Canada Election Act was unconstitutional.
In Figueroa, other sections of the Canada Elections Act were also challenged. One issue went to the Supreme Court of Canada. It is my and our lawyer’s view that the Supreme Court’s ruling in that case implies that any provision that disproportionately impacts smaller political parties, the way our deposit section does, is unconstitutional.
That decision is reported at:  1 S.C.R. 912, 2003 SCC 37 http://scc.lexum.umontreal.ca/en/2003/2003scc37/2003scc37.html
In light of the above jurisprudence, the Green Party of Saskatchewan encourages you to amend the Election Act and eliminate section 47 (3) thus avoiding the necessity and the expense (both to our Party and to the Government of Saskatchewan) of a constitutional challenge in our province.
We would be glad to further discuss this matter with you if you think it might be helpful.
We would appreciate your very early reply.
Thank-you for your consideration.
Green Party of Saskatchewan
RESPONSE DATED JANUARY 28, 2008 RECEIVED FROM THE GOVT OF SASK:
Dear Ms. Finley:
Thank you for your letter of December 18, 2007, on behalf of the Green Party of Saskatchewan with respect to section 47 of The Election Act, 1996.
Without commenting on the legality of the provision you are requesting be amended, I am of the opinion that it is entirely appropriate that The Election Act, 1996 should be reviewed in the light of the recent experience of a general election. Such a review would be conducted with the input of Saskatchewan’s political parties and the Chief Electoral Officer. A review would also include consideration of any changes in the legal environment with repsect to the choices previously made in our legislation.
Accordingly, I will ask my officials to ensure that the concerns you have raised are included in this review. I thank you for bringing this important matter to my attention.
Don Morgan, Q.C.
Minister of Justice
and Attorney General
cc: Houourable Brad Wall, Premier of Saskatchewan