Procedure and House Affairs Committee on June 18th, 2014

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I'm just wondering if you can assure this committee with any certainty that the 1.8 million to two million mailings you refer to were the only mailings that were sent out. Or could there have been more that you're not aware of?

In other words, I asked originally if you requested from the NDP copies of all their mailings. We didn't get an assurance on that, so how do we know whether or not the 1.8 million to two million mailings were all that were put in franked envelopes? Have you any assurances for this committee that these are all they mailed out, or are there others out there that we may not know of and may find at some future date?

[Mark G. Watters]

Mr. Chair, what I can answer to this is that we dealt similarly to the answers that I provided in the past about the board investigating the complaints it receives. With respect to this particular issue, we dealt with the information we had, and we got all the information that we needed with respect to this particular issue.

We don't know about anything else because that wasn't what was complained about. So with respect to this particular issue, we got the information that we needed on that. I hope that answers your question.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you for that, Mr. Watters. I was referring to this particular issue. So you are convinced, on this particular set of mailings and in the investigation that you completed, that all of the mailings had been presented to you by the NDP. There were no other mailings since we didn't know—you didn't know and we didn't know—what was going out because they didn't ask for approval from the House. They got an outside printer to print some stuff that clearly was in violation of the rules.

They put them in franked envelopes and sent them out. We were aware of some because members received them, so we made a complaint based on what we knew, but perhaps there were other mailings that went out that weren't picked up and therefore we were not able to lodge a complaint.

I'm wondering if there is another way to try to determine this. As an example, just prior to—

[The Chair, Conservative, Joe Preston]

Sorry, but I have to stop you. You might get another shot yet.

Mr. Scott, seven minutes....

Oh, I guess Mr. Julian is here; I knew he was here.

[David Christopherson, NDP, Hamilton Centre, ON]

He likes to make a grand entrance.

[Voices]

Oh, oh!

[Peter Julian, NDP, Burnaby—New Westminster, BC]

The wonderful thing about the Twitterverse, Mr. Chair, is that people send in information.

[The Chair, Conservative, Joe Preston]

Is this a point of order?

[Peter Julian, NDP, Burnaby—New Westminster, BC]

No, no; it's just to start it off—

[The Chair, Conservative, Joe Preston]

Oh, you're at questions first. I get it. All right.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

—before I turn things over to Mr. Scott.

For the Whois information for cpccaucus.ca, the registrant name is the Conservative Party of Canada.

[An hon. member]

Oops.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Chair, I just wanted to confirm. Mr. Lukiwski tried to kind of dodge the puck, but right here, fortunately, one of the alert people out there in a Conservative Party riding actually said let's hold on here and get the Whois registration. Very clearly, it's the Conservative Party of Canada.

I'll pass things over to my colleague Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

I think the House administration probably knows that PAMS can account for everything that was sent out, and everything that was reported is everything that was sent out. So aspersions aside, perhaps I can continue.

I have a question for you, Monsieur Denis. Mr. Watters will recognize where this question is coming from. If a rule's been interpreted and applied in a certain way for some time, and if everyone has come to rely on that interpretation or application—let's just say some kind of living law, or law in practice, is developed about that—is there any kind of a concern, just from a retroactivity or natural justice perspective, if there's a sudden retroactive application of the rules without giving notice of the change so as to give people the opportunity to adjust to the new administrative reality?

[Marc Bosc]

This is the kind of decision that the board would be called on to make, Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Great. Thank you.

Monsieur Denis or Monsieur Bosc, if one were to assume that there's a process to be carried out in the name of law, or internal law, or procedure of, say, Parliament, but the procedure is, (a), secret; (b)—just assume—used for political purposes, including to go after one's political enemies; and (c) makes decisions that are arbitrary....

I'll provide two example of arbitrary. It applies to some but not to others, so there's no equality before the law; and it applies rules or new interpretations of rules retroactively.

Would that be a problem if the BOIE acted in that fashion?

[Marc Bosc]

It's a hypothetical question, and I don't think we're at liberty, really, to go there at this time.

[Craig Scott, NDP, Toronto—Danforth, ON]

Okay. Thank you.

Do I have two more minutes, Mr. Chair?

[The Chair, Conservative, Joe Preston]

You have four more minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

That's good.

I want to turn to the notion of “partisan”. I've had this conversation with one of Monsieur Denis' colleagues. One of the biggest concerns I have as a parliamentarian is that I belong to a political party that is a party in Parliament, and the very word “partisan” means “of a party”.

We know that the bylaws make it very clear that parliamentary functions relating to the position of the member, “wherever performed and whether or not performed in a partisan manner”.... It's just part of the idea of “parliamentary” that we're at least permitted to be partisan. There are independents, but we're permitted to be partisan.

Parties are built on the very structure of Parliament. The Parliament of Canada Act obviously makes that clear. We have a governing party and an official opposition that has to be a party to be an official opposition. Again, we have the Members By-Law that recognizes that reality.

My concern is that in all of what's been going on, this word “partisan” is being thrown around in a way that frankly could be undermining the average Canadian's understanding of the legitimacy of being partisan in a parliamentary sense, partisan while engaging in parliamentary functions. For example, when I say “Stephen Harper” in my communications, in my householders, for example, that are allowed to go out, I'm talking about the Prime Minister of Canada, who happens also to be the leader of the party in Parliament, the Conservative Party. I'm not referring to Stephen Harper as the leader of the Conservative Party, the extra-parliamentary party.

When I refer to Tom Mulcair as the leader of the official opposition, I'm referring to him as the leader of a party in Parliament. When in one of my mailings I say “members of the NDP team”, I mean members of the NDP team of MPs, for example in Toronto. There's a lot of sous-entendu. There are a lot of references that I make as a parliamentarian, and frankly, as a constitutional lawyer, and I make these references understanding that I'm talking about the partisan side of Parliament. That includes the idea that I have absolutely no shame in being part of a caucus engaging in solidarity and wanting to sell to Canadians that we have an amazing leader who is doing X, Y, and Z in Parliament....

My concern is that we have a definition in section 1 of “parliamentary functions” that makes very clear: however partisan. Then we have a list of exceptions, to be more certain of the exceptions. My concern is that those exceptions are being interpreted too expansively to actually protect the idea of parties in Parliament being central to our system.

I'm not asking you to say that the interpretations that have been made by the law clerk's office have been too expansive of the exceptions, but I'm asking whether or not you in any sense understand where I'm coming from. It is that this distinction between parties in Parliament and the extra-parliamentary party has to be made in the space for partisanship when it comes to being a parliamentary partisan and has to be preserved by the BOIE, by PROC, and frankly, by the House administration.

[Richard Denis]

Thank you, Mr. Chair.

I certainly understand where you're coming from, Mr. Scott. As you said, I would point out that the definition of “parliamentary functions” totally accepts and considers the fact that of course members can be and actually have to be partisan. But the test, as I said earlier, is always that you look at whatever situation you're faced with in the context of whether or not the member was performing his parliamentary functions. That's what we use in everything that we review in terms of surveys, or questions, or activities of members. It has so far served us well. If in our interpretation it's found that either it's too strict, or too lenient, or too wide, I should say, then a member can easily go to the board and make their point. Often, that's the case.

But the test that's applied relates to whether or not the situation touches on the parliamentary functions of the member. Partisan activities are totally acceptable as long as the activity we're looking at relates to those functions. That's why, when you touch on political activities, on partisanship that's outside of the realm of parliamentary functions, of what a member does, then it's found to be not acceptable.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Scott.

We'll go to Mr. Lamoureux for seven minutes.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you.

Mr. Chair, I do have a question right off the get-go. If I were to put out a flyer, for example, that said that it was, in fact, authorized by the official agent of my party, would that suggest it was of an electoral nature?

[Marc Bosc]

It depends on the context.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

If it was just using that statement—which is a statement used when individuals are in the midst of campaigns and we are obligated to have “Authorized by the official agent”—