Mr. Speaker, I am very pleased to engage in the last few minutes of debate on this issue. Really, this is a legal matter for the House. It should not be addressed as a partisan or a political matter. Matters involving the Standing Joint Committee on Scrutiny of Regulations have, by convention, always been treated that way by the House. The House is appreciative of that. By convention, it is not a matter of confidence in the government. I presume we can handle it today in that fashion.
The standing joint committee decided to commence a disallowance, a revocation of this particular regulation, because it was the judgment of the committee, on more than one occasion, that this regulation unduly infringed on the rights and liberties of Canadians by allowing public officials to create quasi-criminal offences to which penalties were attached.
Our law and our Constitution say that only Parliament can create laws that penalize the citizen. As a result, the committee has been firm on this over a number of years. This is the second time it has come to the House.
There have been seven or eight disallowances accomplished by the committee and the House over the years. Only three of them have come to the House. This is the third time we have debated, I understand, since about 1982. On only two and a half occasions, if I can put it that way, has the government rejected the view of the committee.
I have served on that committee for some 17 years now and I should say that in the whole time of the committee it has never been wrong in law when it reached a decision. I say that very clearly and very firmly. The government should take note of that. There was only one time when a justice of the Federal Court, in an obiter, which was not part of the decision, almost crossed swords with the committee. In the end, it was only in an obiter remark and did not. That was Mr. Justice Marceau in the Camano exemption decision of 1992.
However, I point out that the committee and its heritage allow it to be very firm in its view of the law. In its recent report on the subject of the part II Broadcasting Act fees, the committee meant what it said. The committee reads very well: just recently the Supreme Court upheld the provision held by the parliamentarians that those fees were taxes. They were disallowed. Now the government is saying it does not have to return the illegally collected taxes.
I believe the committee will make its views known to the House and thereby to the government on that. I am giving advance notice that the government should give back the illegally taken taxes. Otherwise, the courts will catch up to us, and that will cost us $1 million or $2 million in legal costs and a whole lot of time.
In any event, in dealing with this procedure and these rules, the House does control this. It is not the committee that prevails. The proposal, the resolution of the committee to disallow, to trigger a revocation, does not govern unless the ministers do not challenge it or unless the House confirms it. In this case, the committee and the procedure are asking the House to confirm the view of the committee that these regulations should be revoked.
In my view, these regulations are illegal and unenforceable. In theory, a citizen will not actually have to pay any fine. In theory, officials will not be able to do any enforcement if their lawyers are aware of it. Sometimes people will pay a parking ticket just because they got the parking ticket, but in this case the regulations are at risk.
Hon. members should please heed that warning. It is a little bit like a town having an artificial sheriff, a fake sheriff, someone pretending to be the sheriff, a person who has no legal authority but who purports to act as the sheriff. Sometimes that brings about good results, but when push comes to shove, that sheriff, in our scenario, has no legal authority and the town is at risk.
I will acknowledge, and it has already been pointed out, that the disallowance of these regulations will create a theoretical vacuum of enforcement, and that may be true. Just as a court of law will sometimes postpone the implementation of its decision pending a rectification of the law in some way to prevent a worse public ill occurring, so in this case it may be the judgment of the House that the disallowance should be postponed pending a rectification or remediation in statute by the government.
The government has told the House it is able to do this with the bill currently before the House for passage. If that is the rationale that sounds reasonable to most citizens, but with a major warning that this is the judgment of the committee and I point out that the committee has never been wrong in law, these provisions are illegal. They unduly infringe on the rights and liberties of citizens. This must be rectified at the earliest possible date, likely through a statutory enactment proposed by the government. I hope members on all sides of the House would support such legislation to repair this regulatory problem.