Evidence of meeting #53 for Procedure and House Affairs in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was criminal.
A recording is available from Parliament.
11:20 a.m.
NDP
Craig Scott NDP Toronto—Danforth, ON
And that even if it's not unconstitutional unfairness, it would be appropriate for us to think about whether there are the kinds of expectations or kinds of fairness that would justify this clause or not.
Would that be a good way of seeing it?
11:20 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I agree. I think that's very helpful.
The change that I suggested, drawing on the Nova Scotia bill and making the application of these amendments to criminal conduct that has occurred prior to the coming into force of the bill, is, as you suggested, valuable. I think it's valuable from the point of view of transparency and clarity, and because the courts say about legislation that it will be presumed to operate prospectively unless Parliament has made its intention clear that it is to operate with respect to events that have occurred in the past. So I think it's very helpful in that way.
But to pursue your other line of thought, why is it that retrospective legislation in a civil context, even if it may be constitutionally valid, can nevertheless seem inappropriate and generate some controversy? I guess it's because, and you've alluded to this, that when we change people's rights and expectations retrospectively, there can often be an unfairness. They have planned their lives in accordance with the existence of those legal rights, and to change them can often be seriously unjust. We've had many instances of that and controversies about that, which have led to important judicial rulings.
I agree. I think it's worth thinking about and reflecting on that. Even if this is a constitutionally valid approach, is there something unfair about it? Does it fall into that category of retrospective legislation that should give us some pause? I think that's where I would say to the committee that with this particular bill, in my view, you ought not to be particularly troubled about that.
The reason for that is, again, because it's a relatively modest extension of the principles that are already embodied in section 19 and 39 of the act. In other words, I would think that a member of the House or a member of the Senate, convicted of a serious crime in a manner that's connected to their Parliamentary responsibilities, would not have a legitimate expectation that they would remain a member of that body.
I hope that's not an unfair suggestion. If that's right, then all we're doing, as I suggested earlier, and as Mr. Williamson has said, is filling a gap in the existing scheme. We're filling a loophole, as he put it because there's a way around the risk of disqualification or expulsion by resigning before it happens. If one has been convicted of a serious offence, that's a way in which one can maintain one's pension.
It seems to me that by closing that loophole, we're giving effect to what would be a fair and reasonable expectation in the circumstances rather than interfering with one in the way that.... I agree, sometimes retroactive legislation can operate very unfairly, but this doesn't strike me as an example of that.
11:25 a.m.
Conservative
The Chair Conservative Joe Preston
Thank you very much.
Thank you, Professor Scott.
We'll go to Mr. Lamoureux for seven minutes.
11:25 a.m.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
Thank you, Mr. Chair.
To take on a question to your last comment, Professor, if the primary purpose of the legislation is to close the loophole, in your opinion, is there a simpler way of doing that as opposed to what we have before us?
11:25 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Of course we can imagine some kinds of behaviour by a member that might not amount to a criminal offence but would nevertheless put Parliament in a terrible light in the public eye. It seems to me that the current focus of concern, and not just with members of Parliament but also in other legislative bodies across the country, as we see reflected in the Nova Scotia bill as well, has been members engaging in serious criminal conduct. There's the sense that there's a pressing need to make sure that those who are convicted of serious criminal conduct while they are members that is in some way connected to their Parliamentary responsibilities shouldn't be able to retain a pension that is funded to a significant degree by the public.
If that's the focus, and I understand that is an appropriate focus, I don't think we can avoid the attempt the bill makes to draw the line, to try to distinguish more minor criminal offences from more serious ones. When you think of all the different ways that we can try to draw that line, I don't think there is an easy answer—and we've all been grappling with that.
There is the range of alternatives that I discussed earlier.
11:25 a.m.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
I'm wondering if I'm looking at it in too simple a fashion, in the sense that the member seems to say that it would appear that there's a current consequence if it's deemed by the House and you are removed from office. One of the primary reasons, if not the primary reason, for the legislation is that an MP or a senator might take pre-emptive action by resigning prior.
So the issue is whether or not there is a simpler way to prevent the MP or senator from being able to take such an action to prevent the consequence of losing their pension.
11:30 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I'm not sure if there is a simpler answer.
11:30 a.m.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
When you think of the Nova Scotia Bill No. 80 as a whole, do you feel it's a better bill than what we are talking about today?
11:30 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I think they are very similar. The differences in the wording are modest, and there are a couple of important differences. One is that language I referred to earlier, making it clear that it applies to a conviction that occurred either before or after the coming into force of the act. I think that's valuable language that's worth incorporating.
I haven't studied Bill No. 80 in any depth, but my understanding is that there was also a provision that allowed for the withdrawal of funds from the pension entitlement for dependants, and I'm sure that has been part of your conversation as well. That may be a provision that's worth considering so that the denial of the benefit to the member who has committed the serious crime doesn't impose hardship on spouse or children.
11:30 a.m.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
Finally, on the whole issue of the maximum penalty and how that triggers the ultimate consequence, I thought it was interesting that you said that ideally it's the parliamentarians who would decide, but it seemed to be your second choice of the actual sentence. I have sat on a quasi-judicial body, a youth justice committee, and I find that there is a great deal of discretion. Judges themselves have discretion and no doubt the seriousness and consequence of losing a pension would all be factors when a judge takes a look at negligence or whatever it might be with a member of Parliament.
If we do not have your first choice of parliamentarians making the decision, is it fair to say that your clear second choice would be sentencing as opposed to the maximum limits, and then could you expand on that as to why?
11:30 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I think that would be my second choice, and there may be other options I haven't thought of. I haven't spent as much time studying this bill as members of the committee, but the reason that's a better alternative is, yes, a judge will be exercising discretion and taking into account a range of factors. But, of course, at the end of the day the sentence will be tailored to the severity of the crime, and since that's what we're trying to do with this bill—acknowledge that not all criminal offences are equal and not all criminal convictions are equal and that sometimes one can be convicted of a crime in circumstances that may not be particularly serious and may not have any kind of close connection to parliamentary responsibilities—those seem to me to be the two key factors: the severity of the crime and how strongly connected it is to a member's parliamentary responsibilities or activities.
I trust members of the House or the Senate to evaluate those factors more effectively than anyone else, and after that, if that first choice isn't available, I think the second-best choice would be to defer to judges who are taking into account all the circumstances of a particular case when setting a sentence. I think to rely on the maximum sentence available for an offence is not the right approach, and I think it could easily be amended.
11:30 a.m.
Conservative
The Chair Conservative Joe Preston
Thank you, Mr. Lamoureux.
We'll go to Mr. Lukiwski for four-minute rounds, please.
11:30 a.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I want to get a little more precision and clarity on something you said earlier with respect to Bill No. 80 in Nova Scotia and how Mr. Williamson's bill might be further improved if we took some of the language from Bill No. 80.
I believe you said—once again, correct me if I'm wrong—that perhaps deleting clause 4 of Mr. Williamson's bill and replacing it with some of the language currently contained in Bill No. 80 would be an improvement to this bill.
If I'm right, could you just expand on that a little? I want to get my head around exactly what we might be able to do if we feel it's an improvement.
11:35 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
I want to be clear: it's not really any change in substance. It's really a question of clarity, visibility, and elegance in the drafting in a modest way, if you like. I say this because I think it's a little bit awkward right now having clause 4 at the end saying that the changes would apply whether or not the conduct at issue that led to the criminal conviction occurred before or after the coming into force of the act.
I'm not trying in any way to change the substance of that idea. I'm only suggesting that there's some value in having it visible, present, inside the Members of Parliament Retiring Allowances Act itself, and to do so with the simple phrase, “regardless of whether the offence occurred before or after the coming into force of this subsection,” that is used in the Nova Scotia provision.
11:35 a.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I keep going back to this whole discussion of retroactivity, and it seems to be the one major issue that we've identified as somewhat problematic in this bill. Again, just for the record, to make sure I've got my head wrapped around this correctly, you don't think, particularly if we amended or changed the language somewhat, as you've just suggested, that there would be an issue with retroactivity in terms of any challenges to the bill itself?
11:35 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
That change I've suggested is really for clarity and visibility. I don't see it as a change in substance at all. At the constitutional level, there is currently no prohibition on Parliament or provincial legislatures passing legislation that operates retroactively outside of the criminal context. That's the current state of the law. We're concerned enough about retroactivity and the potential for unfairness that there's a presumption of interpretation of legislation that it is intended to operate prospectively, unless the contrary intent is made clear. So we want to make clear here that this is a bill that will apply to conduct that occurred in the past.
11:35 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Then we could say that does potentially give rise to unfairness and maybe to kinds of unfairness that the courts would be concerned about and, perhaps, at a constitutional level, in interpreting the charter in the future. As I said earlier, I don't think that pushing the law forward in that regard—because that would be a new kind of concern—is going to happen in this case because the courts, I think, will only be moved by a very serious unfairness.
11:35 a.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Yes, I was just about to say as my final comment that if there were to be legitimate concerns, or if there were to be examples of undue hardships and unfairness, one quick fix would be to change the language of the bill to say, “upon coming into effect of the bill,” going forward. Then there would be no issues whatsoever. Would that not be correct?
11:35 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
Right. But as I said, I don't think there are any issues with the current state of the bill either.
11:35 a.m.
Associate Professor, Osgoode Hall Law School, York University, As an Individual
It would certainly remove that concern from the conversation.
11:35 a.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
Mr. Chisholm, welcome to committee today, by the way. Four minutes to you.
11:35 a.m.
NDP
Robert Chisholm NDP Dartmouth—Cole Harbour, NS
Thank you very much, Mr. Chairman.
I'll be sharing my four—hopefully, two and two—minutes with my colleague.