moved:
That Bill C-34 be amended by deleting Clause 38.Debate arose on the motion in Group No. 1.
Mr. Speaker, I am pleased to rise today to speak to this particular amendment to Bill C-34. In its simplest form, the amendment would withdraw clause 38 from the bill.
While I suppose one could argue that clause 38 is fairly technical, its ramifications are really quite serious. In its simplest form, by withdrawing that clause we would open up the ability of both individuals and members of Parliament to challenge the ethics commissioner in court.
The effect of clause 38 as printed and now before the House is to include the ethics commissioner in the provisions of Bill C-34 that in effect precludes the commissioner at any time from being challenged in the Federal Court of Canada.
We know from the provisions in the rest of the bill that the federal ethics commissioner, if the bill is passed and becomes law, will, for all intents and purposes, be chosen and appointed by the government.
In spite of our attempts at the committee to have the appointment approved by a vote of two-thirds of the House, that was rejected by the government. Therefore, for all intents and purposes, as long as we have a majority government it will be appointing the ethics commissioner.
I will not spend a lot of time in terms of the concerns that have been expressed over the role the commissioner has played up to this point but it certainly has not been a satisfactory role.
The role played by the ethics commissioner, who would be appointed by a majority of the House of Commons, which is the government, would simply not be enough. The role would not be satisfactorily performed. The independence that is required from that person playing the role would certainly not be guaranteed at all unless we had that two-thirds vote.
If we were to take out clause 38 it would give both individuals and members of Parliament the ability to bring the ethics commissioner to account. To a great extent that is what the amendment is about. The amendment is about the accountability of this person.
The effect of the amendment, if clause 38 is not amended, will be to equate to a great degree the ethics commissioner to the role and privileges that we have as members of Parliament. The House has been critical, even to the degree that the government has attempted to push that role, that privilege.
We currently have outstanding litigation that will in effect say that the privilege extends to human rights and that the privilege of the member even overrides human rights in the country. That is a position that we have been opposed to but it is one that the government is pushing at this point.
Also, if clause 38 is not repealed, that role, authority or privilege, as wide as it is and as historically based as it is, would extend to the ethics commissioner.
I and my party believe that clause 38 does not have a role to play in the role that the ethics commissioner should be playing in this country. We should be saying to the ethics commissioner that we expect him or her to be responsible to the House and to the Canadian people but unless clause 38 is removed the Canadian people will have absolutely no role to play.
If there is concern on the rulings of the ethics commissioner in the future, if he or she take positions to the House that are not satisfactory to individuals, groups of individuals or communities within the country, they will not be able to do anything about that unless clause 38 is removed.
The history of the use of judicial review, because that is the process that would be allowed if section 38 were repealed or removed, has been one of checks and balances. We have a government system that generally sees Parliament as being supreme but it is not in all cases.
It was quite clear in 1982, when the Constitution was repatriated and the Charter of Rights and Freedoms was introduced, that we were putting limitations on the role of Parliament. If it were appropriate to use judicial review at that time vis-à-vis the ethics commissioner then it is appropriate at this time.
Section 38 is in effect a throwback. It states that the ethics commissioner would, in many respects, be above the law. Yes, I recognize that person would ultimately still have to report to the House but that individual would be above the law with regard to anybody else. It is not an acceptable position in this day and age.
As elected officials we call upon our constituents to be more involved. We are concerned about the lack of participation at election time. We are also concerned about the lack of participation in the democratic process on a number of other occasions. I suggest this would be one of them. If we pass section 38 unamended we will be precluding that participation from the public.
It is also worth noting, and almost as a warning to other members of the House, what would happen if we had an ethics commissioner. I am not going to suggest for a moment that the government or any other would appoint a commissioner who was not expected to do a good job. However I would point out that whoever that person is he or she will be human and will have eccentric behaviour and personality clashes from time to time. That individual will also make mistakes from time to time. Rulings from the ethics commissioner could have a very detrimental effect on individual members of Parliament. I would suggest that members of Parliament having the ability to resort to an independent tribunal in the form of the federal court would be an appropriate thing to have built into the legislation.
It is not only individuals or groups who would like to make the commissioner more accountable. By removing section 38 we would also be permitting individual members of Parliament to press the commissioner if they were not treated fairly or the commissioner makes a mistake.
In spite of some of the paranoia that we have heard from the Leader of the Official Opposition in the last couple of weeks about our judiciary, the reality is that Canada has a very proud tradition in terms of its independence and the quality of our judiciary. By removing section 38 and relying on our judiciary to be the final arbitrator or final decision maker if the ethics commissioner does not perform his or her job appropriately is something of benefit to individual members of Parliament but, more important, it would give average Canadian citizens the ability to make the commissioner accountable.