Procedure and House Affairs Committee on Oct. 28th, 2014

[The Chair, Conservative, Joe Preston]

I'll call our meeting to order. We are here on the issue of Bill C-518, An Act to amend the Members of Parliament Retiring Allowances Act (withdrawal allowance).

We have Professor Ryder here with us today to help us a little bit, I hope. We'll start with the premise that you are.

[Prof. Bruce Ryder, Associate Professor, Osgoode Hall Law School, York University, As an Individual]

I'll do my best.

[The Chair, Conservative, Joe Preston]

Professor, if you have an opening statement we'd like you to start with that, and then the members will ask you questions.

Go ahead, please.

[Prof. Bruce Ryder]

Thank you very much, Mr. Chair. It's a great pleasure to be here, and I'm grateful to have my visit rescheduled so quickly after the tragic events of last week.

I hope I can share some useful thoughts about Bill C-518. I've prepared some speaking notes that I hope you have before you.

It's obviously a very straightforward and succinct bill. It aims to advance the objectives that underlie section 19 and section 39 of the Members of Parliament Retiring Allowances Act by filling a gap, really, or a loophole if you like, in the reach of the current provisions.

Those sections, as you know, now provide that a member of the Senate or House who is disqualified or expelled will receive a withdrawal allowance consisting of a return of contributions and interest, in lieu of a pension. However, if a member resigns—for example, to avoid impending disqualification or expulsion—he or she will continue to be entitled to receive a pension under the current state of the law.

To address this gap, Bill C-518 would add new subsections to the act, new subsections 19(2) and 39(2), that would extend the effect of the existing provisions to circumstances in which a member ceases to be a member in the following circumstances: If he or she has been convicted of an offence under any act of Parliament that was prosecuted by indictment and for which the maximum punishment is imprisonment for not less than two years, and if the offence arose out of conduct that in whole or in part occurred while the person was a member.

Then in its final provision, in clause 4 of the bill, it seeks to make clear that it applies to criminal conduct that occurred before the introduction of the bill.

I'm a constitutional lawyer and constitutional professor, and I thought it would be useful simply to share my view. I'm happy to elaborate on it if the committee's interested, but I don't see any issues regarding the constitutional validity of this bill. I don't see any provision of the Charter of Rights and Freedoms, or for that matter the Canadian Bill of Rights, that would be violated by Bill C-518.

I understand that some concerns have been raised about the consequences the bill would impose on behaviour that occurred before its introduction. However, it's open to Parliament to decide whether to impose consequences in this manner. Members of the committee may know that sections 11(g) and 11(i) of the Canadian Charter of Rights and Freedoms protect against the imposition of retroactive criminal liability--that is the creation of new offences that apply to behaviour that occurred before the coming into force of those offences, or the retroactive imposition of harsher sentences than existed at the time of the commission of an offence.

But as the Supreme Court of Canada has held, outside of the realm of criminal law, that is criminal liability, criminal sentencing, there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of the Canadian Constitution. Indeed, when we step outside the criminal context, if we're in the civil context or the context of civil consequences, retroactive legislation is not unusual. Moreover, legislation imposing new civil consequences on criminal conduct that occurred in the past is not unusual either.

There is a presumption that statutes are intended to operate prospectively, and therefore not to alter rights or obligations as they existed before the date of the legislation coming into force. But this presumption can be displaced if Parliament makes its intent for legislation to operate retrospectively clear, as the final clause of this bill does.

In any case, if my understanding of the bill is correct, it doesn't seek to operate retroactively in a sense of taking away pension entitlements that have already vested. Rather, the bill imposes new consequences on members of the House or the Senate who cease to be members after the bill’s enactment. They will lose their pension entitlements if they committed and are convicted of a serious crime whether before or after the bill coming into force.

In my view, this intention would be more clearly expressed if clause 4 of the bill were to be replaced by the language that was used in a similar provision adopted by the Nova Scotia legislature last year. The Nova Scotia bill, known as Bill No. 80, provides that a member of the provincial legislature will receive a withdrawal allowance rather than a pension if convicted of a serious indictable offence while a member, and then it adds these words “regardless of whether the offence occurred before or after the coming into force of this subsection.”

In my view, this language could be usefully incorporated into the new subsections 19(2) and 39(2) proposed by Bill C-518, and clause 4 could then be deleted from the bill. This drafting change would have the advantage of making Parliament’s intention clearer within the Members of Parliament Retiring Allowances Act itself.

Finally, I hope the committee will welcome a few technical drafting suggestions regarding the specification of the kinds of criminal convictions that will be caught by the bill. The bill provides that it will apply where a member is prosecuted by indictment for an offence with a maximum punishment of at least two years for conduct that occurred while a member. I understand that Mr. Williamson has signalled his willingness to increase the threshold to five years, as is the case with the Nova Scotia legislation I mentioned earlier, and to add a qualification requiring the conduct that gave rise to the criminal charges and conviction to be connected to the fulfilment of the member's responsibilities as a member of the House or Senate. These strike me as changes that would improve the bill.

But I think it remains problematic to use the maximum penalty for an offence as the way of identifying the serious crimes targeted by the bill. This approach risks being over-inclusive. Let me just give an example. Consider the criminal negligence offence in the Criminal Code, which is in section 221—and we could pick many offences in the Criminal Code to make this point. This offence has a maximum sentence of 10 years. The offence of criminal negligence causing bodily harm has a maximum sentence of 10 years. It's an offence that can cover a wide range of criminal behaviour from the very serious that could lead to something close to or at the maximum sentence of 10 years or to the relatively minor forms of criminal negligence, or relatively modest if you like, that might attract a small or perhaps not even any prison sentence. In my view, it would be unjust to deprive a member of the House or the Senate of his or her pension automatically upon conviction of criminal negligence if we're dealing with criminal negligence that falls at the modest end of the spectrum. And we could say that about so many other offences in the code.

So I've been trying to think, as I'm sure you all have, about whether there are alternative means of identifying the convictions that amount to a serious crime that should trigger the loss of a pension. It seems to me that one possibility would be, as Mr. Williamson has proposed, to have a list of specific offences, but I think that approach has problems too. It's really the opposite problem: it risks being under-inclusive. We may not be able to imagine all of the potential kinds of behaviour that could occur in the future that could be connected to a member's parliamentary responsibilities that we would want to trigger this particular consequence.

Another alternative would be to focus on the actual sentence imposed on the member in a particular case. This is the approach that's taken by section 750 of the Criminal Code which provides that public employment must be vacated if one is sentenced to imprisonment for two years or more. Focusing on the actual sentence imposed in a particular case rather than the maximum sentence that could have been imposed for a particular offence would be a more accurate way of isolating conduct that amounted to a serious crime.

But an even better strategy in my view would be to build upon the existing approach taken by sections 19 and 39 of the Members of Parliament Retiring Allowances Act. By leaving the determination of whether a member should be deprived of his or her pension in a particular case up to the members of the House or the Senate as a whole, it just seems to me that this is a fraught issue and requires the exercise of discretion on a case-by-case basis.

I think members of the House and members of the Senate as a whole are in the best position to decide, on a case-by-case basis, whether a crime was serious enough and strongly enough connected to the convicted member’s parliamentary functions or activities to warrant the removal of pension rights. I would encourage committee members to consider that approach.

Those are my remarks, Mr. Chair. Of course I welcome any questions or comments that committee members have.

[The Chair, Conservative, Joe Preston]

We thank you for your comments.

We'll go to Mr. Lukiwski for a seven-minute round, please.

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

Thank you very much, and thank you very much, Professor Ryder, for being here.

I have a number of questions. I'm sure we'll have a couple of rounds at least.

First, when you talk about its constitutionality, you say that you see no issues with it. To your knowledge, in Nova Scotia has there ever been a constitutional challenge to Bill No. 80, and if so, what were the results?

[Prof. Bruce Ryder]

I'm not aware of any. Of course, the bill was just passed last year by the Nova Scotia legislature. I don't believe there's been an opportunity to enforce it. I believe the answer to that question, sir, is no. I haven't heard of constitutional objections being raised to it. I think the same is true of the existing provisions in sections 19 and 39 of the act.

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

One of the concerns I think all committee members had when we first started examining this bill was the retroactivity clause. Correct me if I'm wrong, but you've stated that you feel, with perhaps some minor amendments to Mr. Williamson's bill, that there wouldn't be an issue with retroactivity. In other words, you believe that it would be proper and could not be challenged if a retroactive element were contained in this bill, that is, if someone had either resigned and then it were later determined that they had committed a crime or if a crime had been committed prior to the coming into effect of this bill. Can you expand upon that a little? I'm a little unsure of exactly what you were trying to say.

[Prof. Bruce Ryder]

Regarding the provisions of the Charter of Rights and Freedoms that I referred to in section 11, there are two that deal with retroactivity, but it's clear that they're focused on the criminal context—the imposition of criminal liability retroactively, the alteration of a sentence for conducts retroactively. The Supreme Court of Canada has made clear that there is no constitutional prohibition on retroactive legislation outside the criminal context. That's what they've said, and I've cited the Imperial Tobacco case where that issue was raised and the court was very clear in making those statements.

But of course the law can always evolve and not all issues have been addressed yet. I suppose we could imagine a situation where the civil consequences are so harsh that the courts might be tempted to say that they amount to, for example, a form of punishment even though the consequences are civil, and perhaps amount to cruel and unusual punishments or are sufficiently analogous to a criminal kind of punishment retroactively—possibly. I mean, it's not out of the question, but there is no case law to support that yet, and the threshold is normally set very high even in the criminal context for thinking about what constitutes cruel and unusual punishment.

So with bill like this that is really quite measured in its approach, in the sense that it seeks to target just serious crimes and doesn't seek to punish—because a member is to the return of contributions with interest—but rather seeks to deprive a member of a publicly funded benefit as a result of the commission of a serious crime, I think it would be very difficult to describe it as a cruel and unusual punishment or anything analogous to criminal penalties.

But the existing state of the law, just to be clear about this, is that there is no prohibition on retroactivity outside the criminal context in the Canadian Constitution. That's why I don't think retroactivity is a constitutional issue related to this bill. And I think we could even have a discussion of whether the bill is properly characterized as one that is retroactive, because to take into account events that occurred in the past to impose consequences now or in the future is not normally what's understood by retroactivity. For example, one could think of qualifications for admission to a profession. It's very common in the legal profession and other professions to require that those seeking admission to the profession have good character, which can often involve an examination of past behaviour, including criminal convictions. I don't think anyone would suggest that it's inappropriate to take account of what has occurred in the past.

I don't think retroactive legislation, when we normally talk about it, is meant to include any legislation that takes into account behaviour that occurred in the past. It's usually understood as altering preexisting rights and obligations. I think there would be a more serious issue regarding retroactivity and it may be more appropriate to use the word retroactivity if we were seeking with this bill to remove a pension that had already vested from a retired member.

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

You mentioned that perhaps a better way to approach this bill is this. Rather than applying a specific time limit on conviction and sentencing or rather than a list of offences, which may be difficult as well, it should be up to the members to decide on a case-by-case basis. The comment I would make there is, does that not run the risk of partisanship then entering into the equation?

[Prof. Bruce Ryder]

Of course, I think that is a risk. That is a disadvantage of that approach. But when one considers the alternatives and the long traditions of Parliament having autonomy through parliamentary privilege to decide the appropriate forms of discipline for members in a particular context, it seems to me that at the end of the day, notwithstanding the risk of partisanship, members of the House or Senate truly are in the best position to understand what kinds of conduct are inconsistent with the integrity of Parliament, with the capacity for Parliament to perform its functions and maintain the confidence of the Canadian people, and to do that with flexibility and responsiveness to the particular circumstances.

The other alternatives seem to me to have more significant flaws. I'm not suggesting that any approach is perfect. It just seems to me to be the best one.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Lukiwski.

We'll go to Mr. Scott, for seven minutes, please.

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

Thank you, and thank you Professor Ryder for being with us.

I wanted to finish up Tom's line of questions in a housecleaning kind of way. Through the Imperial Tobacco case, it seems that in an almost black and white decision Major says that it can only apply criminally because that's what the text says.

Whether or not in the future, for example, the principles in the criminal law section start to feed, say section 7, the principles of fundamental justice in serious civil or administrative consequences, which is my own view, so that retroactivity is kind of an inchoate, it's a candidate for recognition in section 7.... That's not the issue. The issue is that it has to be clearly penal at the moment.

You're absolutely certain that this cannot be characterized as penal and that it's not an alteration of the sentence at all. Yet, you've indicated that it's really not about punishment but about deprivation of benefits.

Just to nail that down, so we can move on to how to do this better, is that right?

[Prof. Bruce Ryder]

I think you know that you can never lure a law professor into saying absolutely certain, so I'm not going to fall for that.

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

I'm so used to getting my way here.

[The Chair, Conservative, Joe Preston]

I thought we were going to get that.

[Prof. Bruce Ryder]

I'm about as confident as one can possibly be at this point in time in the evolution of the law. I take your point that it may well be that the law will evolve in that direction, but it would have to require legislation that shocked our consciences in a much more profound way.

I really do think that this legislation is building on the existing approach in the legislation and it's doing so in a way that resonates with the public. As I've mentioned earlier, I think it does so in a measured fashion.

It doesn't feel to me like a proposal that has a punitive element that would raise the ire of the judiciary to think about evolving the jurisprudence in the directions that you've suggested, Professor Scott.

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

No longer.

[Prof. Bruce Ryder]

Well, we like to think you still are.

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

I want to move on to help make clear the reason you suggested. You've effectively suggested moving what is now going to sit in the amending act as a retroactive or retrospective kind of clause and putting it into the wording of the bill, so that it will actually sit in the members of Parliament act.

My understanding, and correct me if I am wrong, is that you think that that serves a transparency function. It will be known, if it's actually sitting in the act, that it has this retrospective aspect and you don't have to go chasing an amending piece of legislation to know that fact.

Is that part of the reasoning?

[Prof. Bruce Ryder]

Absolutely.

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

Am I right in thinking then that you're saying it's nonetheless a function of Parliament, and therefore this committee, to consider whether something that's retrospective, retroactive, or close to it is the best thing to do even if it's not constitutional?

[Prof. Bruce Ryder]

Even if there's not a constitutional issue.

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

Even if there's not a constitutional issue, yes.

Major himself says:

The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations

—but here you might not have the best intentions, but might have reasonable expectations—

and is sometimes perceived as unjust. Those who perceive it as such can perhaps take comfort in the rules of statutory interpretation that require the legislature to indicate clearly any desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such effects and “determined that the benefits of retroactivity [or retrospectivity] outweigh the potential for disruption or unfairness”.

That's kind of the space I would assume that we're now in.

[Prof. Bruce Ryder]

Yes.