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Conservative MP for Regina—Qu'Appelle (Saskatchewan)
Won his last election, in 2011, with 53.50% of the vote.
Statements in the House
Privilege October 30th, 2013
I am now prepared to rule on the question of privilege raised on October 17, 2013 by the hon. member for Timmins—James Bay regarding alleged misleading statements made by the Prime Minister during oral questions on June 5, 2013.
I would like to thank the member for Timmins—James Bay for raising this matter, as well as the Leader of the Government in the House of Commons, the House Leader of the Official Opposition, the member for Gaspésie—Îles-de-la-Madeleine, the member for Winnipeg North, the member for Richmond—Arthabaska and the member for Avalon for their comments.
In raising this question of privilege, the member for Timmins—James Bay claimed that answers given by the Prime Minister during question period on June 5 with respect to a financial transaction between his former chief of staff, Nigel Wright, and Senator Mike Duffy completely contradicted information later revealed in July through a Royal Canadian Mounted Police investigation.
The hon. member focused on the Prime Minister's June 5 assertion to this House that decisions regarding the transaction
....were not communicated to me or to members of my office.
He concluded that the discrepancy meant either that staff in the Prime Minister's office withheld information from him and knowingly allowed him to respond to questions in the House with false information, even perhaps without his knowledge, or that the Prime Minister chose to ignore the truth.
This, he said, was evidence enough for a finding by the Speaker that a prima facie breach of privilege had occurred. He likened the present situation to one faced by Speaker Jerome on December 6, 1978 after it had been ascertained that a former RCMP commissioner had deliberately misled a minister, who then provided the incorrect information to a member, thus impeding him in the performance of his duties.
The member for Timmins—James Bay then referred to my ruling of May 7, 2012, in which I reiterated the three conditions that need to be established when alleging that a member is in contempt for deliberately misleading the House. In doing so, he acknowledged that only one of the three conditions had been met, namely that the statement in question was known to be misleading. He then stated that further study was required in order to determine whether the other two conditions had been met, namely whether the Prime Minister knew at the time that what he told the House was incorrect, and that in making the remarks the Prime Minister intended to mislead the House.
The Leader of the Government in the House of Commons countered that the Prime Minister had, in fact, indicated both inside and outside the House that he had answered questions based on the information he had at the time. The government House leader then recalled the long-standing practice in this House of accepting the word of a member.
Furthermore, the Leader of the Government in the House of Commons argued that the ruling of Speaker Jerome, as cited by the member for Timmins—James Bay was not instructive in the present case as that finding of prima facie privilege was firmly based on an admission by an official that he had deliberately misled a minister. He concluded that, since no answers provided in the House were known at the time to be incorrect, there was no intention on the part of the Prime Minister to mislead the House.
The importance of this issue for members individually and collectively cannot be overstated, as it speaks to the very privileges upon which our parliamentary system is founded. Members frequently have risen in this House to defend their need, and indeed their right, to be provided with accurate and truthful information in order to fulfill their parliamentary obligations, and Speakers have frequently underscored the need for clarity and accuracy as well.
That being said, many of my predecessors in the chair have reminded the House that in most instances, claims related to disputed facts are not grounds for prima facie findings of privilege.
As Speaker Fraser indicated on December 4, 1986, at page 1792 of Debates:
Differences of opinion with respect to fact and details are not infrequent in the House and do not necessarily constitute a breach of privilege.
As stated in House of Commons Procedure and Practice, Second Edition, at page 510:
In most instances, when a point of order or a question of privilege has been raised in regard to a response to an oral question, the Speaker has ruled that the matter is a disagreement among Members over the facts surrounding the issue. As such, these matters are more a question of debate and do not constitute a breach of the rules or of privilege.
More recently, Speaker Milliken expanded on this and the role of the Chair in such instances when on January 31, 2008, at page 2435 of House of Commons Debates, he stated:
…any dispute regarding the accuracy or appropriateness of a minister’s response to an oral question is a matter of debate; it is not a matter for the Speaker to judge. The same holds true with respect to the breadth of a minister’s answer to a question in the House: this is not for the Speaker to determine.
While the Speaker might not be tasked with assessing the content of replies with respect to the their accuracy or appropriateness, the Chair does, however, have an important if strictly limited role when it is alleged that the House has been misled. In this particular instance, the matter centres on allegations of the House being deliberately misled, so certain precedents and practices are germane to the case. As the member for Timmins—James Bay and the government House leader have both indicated, my ruling of May 7, 2012, is of particular relevance. At that time, at page 7650 of the Debates, I stated:
It has become accepted practice in this House that the following elements have to be established when it is alleged that a member is in contempt for deliberately misleading the House: one, it must be proven that the statement was misleading; two, it must be established that the member making the statement knew at the time that the statement was incorrect; and three, that in making the statement, the member intended to mislead the House.
Maingot's second edition of Parliamentary Privilege in Canada, at page 234, lends further support to this assertion, indicating that:
…before the House will be permitted by the Speaker to embark on a debate in such circumstances [it must be demonstrated] that a Member of the House of Commons was intentionally misled or an admission of facts that leads naturally to the conclusion that a Member was intentionally misled, and a direct relationship between the misleading information and a proceeding in Parliament, is necessary.
Coupled with this is the time-honoured tradition of accepting a member's word in the House. Many of my predecessors have reiterated that principle over the years, just as Speaker Sauvé did on May 27, 1982, when she explained, at page 17823 of Debates, that:
I cannot attach greater credibility to the word of one hon. member over another. The Speaker cannot interpret statements made by hon. members which must be accepted at face value. The hon. member [...] claims he had been misled. I accept that. He claims he has been deliberately misled. I accept that too, but as an assertion, not as a fact upon which I could find privilege; because the minister, who has the same right to have his word accepted in this House, says there is no attempt to mislead, deliberately or otherwise, and I accept that, too.
To uphold these conditions and practices, as the Chair must do, the threshold of proof is high. It should be no surprise then that in the rare instances when prima facie has been found, little or no doubt was left as to the validity of the claim made. The ruling of December 6, 1978, in which Speaker Jerome found that a prima facie contempt of the House existed, rested on the official's own admission that the minister had been deliberately misled, and it was on that basis that Speaker Jerome stated in the Journals of December 6, 1978, at page 1857:
I can interpret that testimony in no other way than meaning that a deliberate attempt was made to obstruct the member in the performance of his duties and, consequently, to obstruct the House itself.
This precedent stands in contrast to most others. Among them, and perhaps more analogous to the issue now before the House, is Speaker Milliken's ruling of February 25, 2004, where he concluded at page 1047 of House of Commons Debates that there was no prima facie breach of privilege since:
...no evidence has been brought forth to show that…department officials deliberately intended to deceive their superiors and so obstruct hon. members in the performance of their duties.
The Chair has carefully reviewed the evidence brought forward, as well as what was said in the House, searching for evidence that the conditions laid out in my ruling of May 2012, and in Speaker Milliken's ruling of February 2011 that informed it, have been met. The Chair has not found that evidence. The member for Timmins—James Bay himself doubted that all enumerated conditions for finding a prima facie privilege have materialized when he conceded:
The other two elements, however, do need to be clarified, and this is the reason I am asking you, Mr. Speaker, to find that there is a prima facie case so that the issue could be studied at greater depth by the Standing Committee on Procedure and House Affairs.
He cast further doubt when he asked, “Did the Prime Minister know at the time that the statements he gave to the House were misleading?” and “Did the Prime Minister intend to mislead the House?”
By his own admission, neither question can be answered with certainty.
These same doubts were echoed by the House Leader of the Official Opposition and the member for Winnipeg North. That the Prime Minister has acknowledged that he did not himself have full information when he provided an answer during question period last June 5 does not lead the Chair to conclude that the two missing conditions have been met. Nor is it appropriate for the Chair to speculate on whether the Prime Minister ought to have known of Mr. Wright's actions or been told of them by the individuals in his office who are now said to have known about them.
The Chair understands that members have strong views on both sides of this very public and evolving issue, but I must remind the House that the Chair is bound by very narrow parameters in situations such as this one.
Based on accepted practices, precedents and usages, as well as a thorough scouring of the evidence presented and statements made in the House, the Chair cannot, in the current circumstances, find evidence that the Prime Minister's statements to the House were deliberately misleading, that he deliberately provided incorrect information, that he believed his statements to be misleading or that he intended them to be misleading.
Accordingly, the Chair can find no valid procedural grounds for finding a prima facie case of privilege at this time.
I thank honourable members for their attention.
Point of Order October 17th, 2013
I am now prepared to rule on the point of order raised by the hon. House Leader of the Official Opposition regarding Government Motion No. 2 that is standing on the order paper in the name of the hon. Leader of the Government in the House of Commons.
The opposition House leader argued that the motion, in calling for the House to reinstate government bills and re-adopt several orders of reference, with or without changes, from the previous session, and in calling for the adoption of new orders of reference with regard to the management of business in the current session, both in the House and in committee, constitutes a series of distinct proposals that require separate debates and separate votes. He then asked the Chair to divide the motion to allow for this.
For his part, the government House leader stated that in his view the motion represented a balanced attempt to ensure that everyone's business from the last session could be preserved. But he stressed that the motion's broad purpose was also to more generally arrange business in the House and its committees this autumn.
As has been alluded to, this is not the first time the House is confronted with a situation of this kind.
O’Brien and Bosc, at pages 562-3, explains that:
When a complicated motion comes before the House (for example, a motion containing two or more parts each capable of standing on its own), the Speaker has the authority to modify it in order to facilitate decision-making in the House. When any member objects to a motion containing two or more distinct propositions, he or she may request that the motion be divided and that each proposition be debated and voted on separately. The final decision, however, rests with the Chair.
While previous speakers have been faced with similar requests to divide motions, they have seldom done so, something Speaker Milliken, on October 4, 2002, at page 299 of Debates, remarked upon when he stated that “the Chair must exercise every caution before intervening in the deliberations of the House”. In that instance, Speaker Milliken did in fact determine that a motion contained three different proposals. In that case, the broad purpose of the motion was the “resumption and continuation of the business of the House begun in the previous Session of Parliament”. Accordingly, Speaker Milliken took the view that the first two proposals, which dealt with the reinstatement of business from a previous session, should be debated together but each get a separate vote. The third proposal, which concerned travel by the Standing Committee on Finance and was not found to be “strictly speaking, a matter of reinstating unfinished business”, became a separate motion. In making this decision to allow a separate debate, Speaker Milliken also stated, “Our usual practice is to adopt travel motions on a case-by-case basis.”
While government Motion No. 2 is similar to the 2002 motion, it is not identical. In adjudicating cases of this kind, the Chair must always be mindful to approach each new case with a fresh eye, taking into account the particular circumstances of the situation at hand. Often, there is little in the way of guidance for the speaker and a strict compliance with precedent is not always appropriate.
In this case, the Chair is acutely aware, as is stated at page 562 of O’Brien and Bosc, that to divide a motion is rare and that “only in exceptional circumstances should the Chair make this decision on its own initiative.”
At the same time, the Chair has listened very carefully to the interventions made on the nature of government Motion No. 2 and on the particular parts of it that have given rise to objections on the part of the opposition House leader. I have noted that he reserved his strongest objections for part (a) of the motion, which deals with the reinstatement of government bills, and indeed indicated that his party “supports” the other aspects of the motion.
In view of this unique set of circumstances, the Chair does not feel the very high threshold required for dividing the motion has been met and accordingly, I will allow the motion to be debated as a whole. However, the Chair understands the arguments raised by the opposition House leader as they relate to the very broad blanket provisions contained in part (a) of the motion. In that regard, I am directing that a separate vote be held on that part of government Motion No. 2. In proceeding in this manner, I trust that members will have satisfactory and practical means to express their views through debate, amendment and voting on the propositions contained in government Motion No. 2.
I thank all members for their attention.
I wish to inform the House that because of the ministerial statement, government orders will be extended by nine minutes.
The Chair has notice of a question of privilege raised by the hon. member for Toronto—Danforth.
Business of the House October 16th, 2013
I would like to make a statement concerning private members' business.
As hon. members know, our Standing Orders provide for the continuance of private members’ business from session to session within a Parliament.
In practical terms, this means that notwithstanding prorogation, the list for the consideration of private members' business established at the beginning of the 41st Parliament shall continue for the duration of this Parliament.
As such, pursuant to Standing Order 86.1, all items of private members' business originating in the House of Commons that were listed on the order paper at the conclusion of the previous session are automatically reinstated to the order paper and shall be deemed to have been considered and approved at all stages completed at the time of prorogation.
All items will keep the same number as in the first session of the 41st Parliament. More specifically, all bills and motions standing on the list of items outside the order of precedence shall continue to stand. Bills that had met the notice requirement and were printed in the order paper but had not yet been introduced will be republished on the order paper under the heading “Introduction of Private Members' Bills”. Bills that had not yet been published on the order paper need to be recertified by the Office of the Law Clerk and Parliamentary Counsel and be resubmitted for publication on the notice paper.
Of course all items in the order of precedence remain on the order of precedence or, as the case may be, are referred to the appropriate committee or sent to the Senate.
Specifically, at prorogation there were three private members' bills originating in the House of Commons adopted at second reading and referred to committee.
Therefore, pursuant to Standing Order 86.1, Bill C-458, an act respecting a national charities week and to amend the Income Tax Act (charitable and other gifts) is deemed referred to the Standing Committee on Finance.
Bill C-478, An Act to amend the Criminal Code (increasing parole ineligibility), is deemed referred to the Standing Committee on Justice and Human Rights.
Bill C-489, an act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders) is deemed referred to the Standing Committee on Justice and Human Rights.
Accordingly, pursuant to Standing Order 97.1, committees will be required to report on each of these reinstated private members’ bills within 60 sitting days of this statement.
In addition, prior to prorogation, nine private members' bills originating in the House of Commons had been read the third time and passed. Therefore, pursuant to Standing Order 86.1, the following bills are deemed adopted at all stages and passed by the House: Bill C-217, an act to amend the Criminal Code (mischief relating to war memorials); Bill C-266, an act to establish Pope John Paul II day; Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity); Bill C-290, an act to amend the Criminal Code (sports betting); Bill C-314, an act respecting the awareness of screening among women with dense breast tissue; Bill C-350, an act to amend the Corrections and Conditional Release Act (accountability of offenders); Bill C-377, an act to amend the Income Tax Act (requirements for labour organizations); Bill C-394, an act to amend the Criminal Code and the National Defence Act (criminal organization recruitment); and Bill C-444, an act to amend the Criminal Code (personating peace officer or public officer).
Accordingly, a message will be sent to the Senate to inform it that this House has adopted these nine bills.
Consideration of private members’ business will start on Thursday, October 17, 2013.
As members may be aware, among the items in the order of precedence or deemed referred to committee, there are four bills standing in the name of members recently appointed as parliamentary secretaries who, by virtue of their office, are not eligible to propose items during the consideration of private members' business.
Bill C-511, an act to amend the Federal-Provincial Fiscal Arrangements Act (period of residence) and Bill C-517, an act to amend the Criminal Code (trafficking in persons) were awaiting debate at second reading in the order of precedence at the time of prorogation.
Bill C-458, An Act respecting a National Charities Week and to amend the Income Tax Act (charitable and other gifts), and Bill C-478, An Act to amend the Criminal Code (increasing parole ineligibility), were in committee at the time of prorogation and, as stated earlier, have been returned there.
This is in keeping with the principle expressed at pages 550-551 and 1125 of the House of Commons Procedure and Practice, Second Edition, which provides that bills remain on the order of precedence since they are in the possession of the House and only the House can take further decision on them.
These items are therefore without eligible sponsors but remain in the possession of the House or its committees. If no action is taken, at the appropriate time these items will eventually be dropped from the order paper, pursuant to Standing Order 94(2)(c).
Hon. members will find at their desks a detailed explanatory note about private members’ business. I trust that these measures will assist the House in understanding how private members' business will be conducted in this session. The table officers are available to answer any questions members may have.
I thank all members for their attention.
I have the honour to inform the House that when the House did attend His Excellency the Governor General in the Senate chamber, His Excellency was pleased to give, in Her Majesty's name, the royal assent to certain bills:
C-37, An Act to amend the Criminal Code—Chapter 11, 2013.
S-9, An Act to amend the Criminal Code—Chapter 13, 2013.
C-47, An Act to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts —Chapter 14, 2013.
C-309, An Act to amend the Criminal Code (concealment of identity)—Chapter 15, 2013.
C-43, An Act to amend the Immigration and Refugee Protection Act—Chapter 16, 2013.
S-209, An Act to amend the Criminal Code (prize fights)—Chapter 19, 2013.
S-14, An Act to amend the Corruption of Foreign Public Officials Act—Chapter 26, 2013.
S-17, An Act to implement conventions, protocols, agreements and a supplementary convention, concluded between Canada and Namibia, Serbia, Poland, Hong Kong, Luxembourg and Switzerland, for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes—Chapter 27, 2013.
S-15, An Act to amend the Canada National Parks Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to the Canada Shipping Act, 2001—Chapter 28, 2013.
It being 4:24 p.m., the House stands adjourned until Monday, September 16, 2013, at 11 a.m., pursuant to Standing Orders 28(2) and 24(1).
(The House adjourned at 4:24 p.m.)
Privilege June 18th, 2013
I am now prepared to rule on the question of privilege raised on June 5 by the hon. member for Avalon, and again today by the hon. member for Beauséjour, regarding the right of the members for Saint Boniface and Selkirk—Interlake to continue to sit and vote in the House.
I would like to thank the hon. member for Avalon for having raised this mater, as well as the hon. Leader of the Government in the House of Commons, and the members for Toronto—Danforth, Winnipeg North, Selkirk—Interlake and Saint Boniface for their comments.
In raising his question of privilege, the member for Avalon focused on the situation of the members for Saint Boniface and Selkirk—Interlake who had failed to correct their electoral campaign returns by a specified date, as required by the Chief Electoral Officer, pursuant to subsection 457(2) of the Canada Elections Act. Accordingly, he argued, pursuant to subsection 463(2) of the same act, the members no longer had the right to continue to sit or vote in the House. While acknowledging that both members had made applications to the courts on this matter, he claimed that a review by the courts does not provide relief from section 463 of the act, arguing that the members: “...should not sit or vote in the House until the matter is rectified, either by Elections Canada or by the Federal Court”.
Furthermore, the member for Avalon argued that only the House and neither the courts nor the Speaker, possessed the authority to determine the right of any member to sit and vote in the House. In response, the Leader of the Government in the House of Commons described the situation in each case as a dispute about the interpretation of accounting practices, one which did not justify the suspension of duly elected members from participating in the proceedings of the House. It was also one that he found to have been raised prematurely, and he saw no merit in asking the Chair to intervene prior to the conclusion of relevant court proceedings.
The government House leader held that the members currently have two options—either to submit returns that comply or to file an application with the courts—with suspension from the House being the consequence only if a member failed to choose one of the available options. Thus, he claimed that to accept the interpretation that these members could not continue to sit or vote would effectively remove the members' right to seek redress through the courts and grant Elections Canada an inordinate, albeit unintended, power.
On June 7, the members for Selkirk—Interlake and Saint Boniface intervened. Each agreed that the matter was a disagreement with Elections Canada as to accounting interpretations applicable to certain expenditures, and each stated that pursuant to section 459 of the Canada Elections Act they had filed applications with the Manitoba Court of Queen's Bench. Each member argued that this put into abeyance the provisions of subsection 463(2) of the act, regarding what would amount to suspensions from the House.
Given that the matter is currently before the courts, and that they are both party to court proceedings, both members invoked the sub judice convention, arguing that any debate or decision on the matter outside the court would prejudice their interests in the court proceedings.
Before I begin to outline the complex issues with which we are all grappling, allow me to review for the House the sequence of events that have led us to where we are today.
While the election expense review processes undergone by the members for Saint Boniface and Selkirk—Interlake began some time ago, for our purposes this issue arose on May 23 and 24, when I received letters from the Chief Electoral Officer informing me of the status of the respective cases involving the two members. The letters both contain a reference to the relevant section of the Canada Elections Act and close with the following sentence: “In the event that the corrected returns or an application to a court is subsequently filed, I will advise accordingly”.
On May 24, the Chair learned that both members had filed applications to the Manitoba Court of Queen's Bench in relation to these matters.
Perhaps I should explain that immediately on receipt of the first letter from the Chief Electoral Officer, I sought the advice of the clerk and the law clerk. Neither was aware of any precedent and both undertook further research, after which they confirmed that the situation is indeed unprecedented.
However, it was only on June 4, having by then been informed as well that the two applications in question had been filed, that the Chief Electoral Officer could himself notify me officially, by letter, of the two applications.
Thus, it was only after these events, and following media reports regarding the existence of these letters, that on June 5, the hon. member for Avalon rose in the House on a question of privilege to argue the case. Other members have intervened in the matter and that has led us to this ruling today.
After the intervention by the member for Avalon, the member for Saint-Léonard—Saint-Michel raised a related issue on June 6, arguing that the Speaker ought to table the letters from the Chief Electoral Officer in the House.
The Chair then returned on Friday, June 7, to address the matter of the House being notified on the situation. I stated that I was not prepared to table the letters at that time. Since there was no provision to deal with letters of that nature and since I was currently considering the entire matter, I believed it would be appropriate to wait and address all aspects of this situation in a comprehensive ruling.
It seems evident to the Chair that the lack of a clear process, either for me or for the House, in matters of this nature leaves us all in a complicated situation. As Speaker, I must be mindful of my duty to protect the rights of individual members while, at the same time, balancing that responsibility with the responsibility to ensure, as the servant of the House, that I protect its exclusive right to deal with matters affecting the collective privileges of the House. In the present circumstances, this is no small challenge.
The right—in fact, the absolute need—for members to be able to sit and vote in the House is so integral to their ability to fulfill their parliamentary duties that it would be difficult for the Chair to overstate the importance of this issue to members individually and to the House as a whole. Page 245 of House of Commons Procedure and Practice, second edition, states that, “…the determination of whether a Member is ineligible to sit and vote is a matter affecting the collective privileges of the House…”
At the same time, as the member for Selkirk—Interlake reminded the House, House of Commons Procedure and Practice at page 307 states, “It is the responsibility of the Speaker to act as the guardian of the rights and privileges of Members and of the House as an institution”. In my view, this is especially important in the case before us today because of the potential infringement on the rights of certain members individually and on the rights of the House collectively.
In fulfilling this responsibility, it is incumbent upon the Chair to remind the House of the limited role assigned to the Speaker in matters with legal implications. Simply put, the Speaker’s role is to determine procedural issues, not matters of law, which are for the courts to decide.
Where a statute lays down a specific course of action, for example to table a document or to hold off on taking action while an appeal to the courts is ongoing, the Chair governs itself accordingly. However, where—to a lay reader—related provisions of a statute are categoric in stating, as subsection 463(2) does in this case, that a particular consequence applies and is silent as to any mitigating effect of an application to the court for relief from that consequence, then the Chair must heed this reality.
That being said, O’Brien and Bosc states at page 259 that:
In the case of statutory provisions, the House of Commons endeavours to ensure that its Standing Orders and practices are consistent with statutes while retaining the exclusive jurisdiction to determine whether the provisions of a statute apply to its proceedings.
Further, at page 265 it also states:
...since the House has the exclusive jurisdiction to determine whether and how a statute applies to its proceedings, there may be extraordinary situations when the House determines that a statutory provision ought not to apply.
To answer this question of how a statute might apply to the House proceedings, the member for Avalon looked to a ruling given by Speaker Lamoureux on March 1, 1966, for guidance. In it, he found evidence that it is indeed the House, and the House alone, that retains the sole authority to determine when members of Parliament may sit and vote in the House.
On page 1940 of the Debates, Speaker Lamoureux stated:
...the house is still the sole judge of its own proceedings, and for the purpose of determining on a right to be exercised within the house itself which, in this particular case, is the right of one hon. member to sit and to vote, the house alone can interpret the relevant statute.
However, does this mean that the House should therefore be seized with this matter immediately in order to pronounce itself on the substantive issue, as several members have seemed to suggest? Let us consider that question.
House of Commons Procedure and Practice, second edition, at pages 244 and 245 states:
Once a person is elected to the House of Commons, there are no constitutional provisions and few statutory provisions for removal of that Member from office. The statutory provisions rendering a Member ineligible to sit or vote do not automatically cause the seat of that Member to become vacant. By virtue of parliamentary privilege, only the House has the inherent right to decide matters affecting its own membership. Indeed, the House decides for itself if a Member should be permitted to sit on committees, receive a salary or even be allowed to keep his or her seat.
Bourinot's Parliamentary Procedure and Practice, fourth edition, at page 64, reads as follows:
The right of a legislative body to suspend or expel a member for what is sufficient cause in its own judgment is undoubted. Such a power is absolutely necessary to the conservation of the dignity and usefulness of a body.
Thus, I believe there is no dispute that it is up to the House as a whole, and not for the Speaker, ultimately to decide if one of its members should continue to sit and vote.
While there may admittedly be some lessons to be drawn from the 1966 case, I must point out that the circumstances facing Speaker Lamoureux in 1966 were markedly different than those at play in the present case.
Some days before ruling as he did, Speaker Lamoureux had informed the House of a judgment on the case at issue. This reference may be found in the Debates for February 28, 1966, at page 1843. As members who visit that reference will find, it appears that in the 1966 case, the legal process was at an end and the member whose right to sit and vote had been questioned had been cleared to sit and vote. By contrast, in the case before us today, applications have been filed, as all hon. members know, although court hearings have yet to begin.
With these considerations in mind, the Chair must determine a way forward for the House that respects and safeguards its rights and privileges. To be sure, the arguments presented have revealed just how rare it is that the Chair is asked to pronounce itself on an issue of such deep significance and with such potential consequences, yet with so few precedents to guide it. The question of the processes that ought to be followed in cases of this kind is of critical importance and is one that the Chair believes the House ought to clarify.
The current situation—and the various interventions on the matter—points to a serious gap in our procedures here in the House in cases where an impasse is reached in a dispute between a member and Elections Canada. The Canada Elections Act provides that the Chief Electoral Officer inform the Speaker when key milestones have been reached in the course of a dispute. Thus, as I explained earlier, I received a letter from the Chief Electoral Officer informing me that a member had not complied with his request for corrections and informing me of the suspension provision of the act applicable in the circumstances. Also, while elsewhere in the act there are provisions for a member in those circumstances to apply to the courts for relief, the act is silent on the effect of such an appeal on the suspension provision.
I am not the only one left with questions about how to respond to this situation. Some argue that the provisions in subsection 463(2) demand immediate action—namely, the suspension of a member who has not complied with the Chief Electoral Officer in his application of subsection 457(2) of the Canada Elections Act—even as they acknowledge that there is no procedure for operationalizing such a suspension. Others hold that since the Canada Elections Act provides for an application for relief from the provision in subsection 457(2), any suspension is held in abeyance until the court makes its decision.
We can all agree, however, that this silence is in sharp contrast to the statutory processes contained in part 20 of the Canada Elections Act with regard to contested elections, described in O'Brien and Bosc at pages 193 to 195.
In those cases, subsection 531(3) of the statute provides that the clerk of the court shall inform the Speaker of the decision of the court and whether or not an appeal has been filed. The statute is very clear about the Speaker's duties. It states:
Except when an appeal is filed under subsection 532(1), the Speaker of the House of Commons shall communicate the decision to the House of Commons without delay.
If there is an appeal to the Supreme Court, then the Speaker awaits the decision of that court, which its registrar must communicate to him. Here again, the Canada Elections Act is very clear. Once in possession of that decision, “the Speaker of the House of Commons shall communicate the decision to the House of Commons without delay”.
However, in the case before us, the Speaker is given no such direction and there are no precedents to be guided by. I will therefore respond to the situation as fairly as I can, trying to maintain an equilibrium between the rights of the House as a whole and the rights of the individual member.
Make no mistake: any member—any one of us—could potentially be in such a predicament; this highlights all the more vividly the importance of my duty to safeguard the rights of each and every member and of my potential inability to do so without the proper mechanisms in place.
Therefore, in the absence of statutory guidance, should a Standing Order mechanism be developed to guide the Chair in such cases?
To answer that question, I believe it would be helpful to the whole House, and to me as Speaker, if the Standing Committee on Procedure and House Affairs were to examine the issue with a view to incorporating in our Standing Orders provisions on how the Chair and the House ought to deal with such matters in the future. The committee might begin by looking at the lack of a clearly defined process for communications on these matters between the Chief Electoral Officer and the Speaker and between the Speaker and the House. This would fall squarely within the mandate of this committee, which is charged, pursuant to Standing Order 108(3), with “the review of and report on all matters relating to the election of Members to the House of Commons”.
If the committee were to proceed in this manner, the Chair believes the sub judice convention would not be breached as the deliberations would not reach into the substance of the disputes themselves. Rather, they would focus on the processes that the Speaker could follow in these cases while remaining true to his fundamental duty as Speaker to act as the guardian of the individual rights and privileges of each member while safeguarding the rights and privileges of the House as an institution.
This would be in keeping with the ruling made by Speaker Sauvé on March 22, 1983, in which she stated that:
...the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members.
For his part, in remarking that he had a certain appreciation of the Speaker’s position in the absence of any guidance at all, either from the statute or from the Standing Orders, as to how to execute the provisions of subsection 463(2) of the act, the member for Toronto—Danforth came to a conclusion with which I can entirely agree, namely:
this honourable House cannot function without the Speaker and the House as a whole working in concert....
It seems evident to me that the lack of a clear process is not satisfying the needs of the House nor indeed of the individual members concerned.
As always, in deciding on questions of privilege, the Speaker’s role is well-defined—some might even say constrained—as it is limited to determining if, at a first glance, the matter appears to be of such significance as to warrant priority consideration over all other House business.
In the present case, circumstances are significantly different from those of the 1966 case relied upon by the hon. member for Avalon. However, the Chair is faced with the fact that some have argued that it is just and prudent to continue to await the conclusion of legal proceedings, while others have maintained that the two members ought, even now, not to be sitting in the House.
I believe that the House must have an opportunity to consider these complex issues. This approach is founded on an ancient practice summarized in a section of Bourinot's, fourth edition, found at pages 161 and 162 of that work, where it states:
In the Canadian as in the English House of Commons, “whenever any question is raised affecting the seat of a member, and involving matters of doubt, either in law or fact, it is customary to refer it to the consideration of a committee”.
Accordingly, the Chair has concluded that there is a prima facie case of privilege here.
I would now like to return to the issue of the letters I have received from Elections Canada on these cases. As I said before, the Speaker generally tables documents in accordance with statutory requirements or the Standing Orders. Outside of the sorts of documents enumerated in O’Brien and Bosc, at pages 435 and 436, the Chair is not aware of any precedent or practice that would suggest that letters to the Speaker, even letters from an officer of Parliament, are de facto letters to the House, as has been suggested.
However, I cannot logically come to the conclusion that this situation warrants immediate consideration by the House, without also ensuring that the House has access to the letters from the Chief Electoral Officer to me on the situation. The Chair would welcome recommendations from the Standing Committee on Procedure and House Affairs and the House’s clear directions on how these issues must be handled in the future.
Meanwhile, I will make available the letters I received from the Chief Electoral Officer informing me of the application of the provisions of subsection 436(2) of the Canada Elections Act and the letters I received informing me that applications to the courts had been made for relief from these provisions. I am also prepared to make available correspondence that I might receive from the Chief Electoral Officer in future cases that may arise in like circumstances. I also wish to advise the House that, just today, I have received a letter from the Chief Electoral Officer informing me that the member for Saint Boniface has since provided a corrected return as required by the Canada Elections Act.
In summary, then, to bring clarity to the situation at hand and to give the House a voice on the matter and to seek its guidance, the Chair has concluded that immediate consideration of the matter by the House is warranted.
In view of the circumstances brought to the attention of the House regarding the situation of the member for Avalon, I now invite the member for Beauséjour, who has raised an identical question of privilege, to move the appropriate motion.
Points of Order June 7th, 2013
Yesterday afternoon, following question period, the hon. member for Saint-Léonard—Saint-Michel rose in the House to request that I make available to all members correspondence I have received from the Chief Electoral Officer in relation to the election expenses of certain members. I explained to the member that the matter referred to is currently the subject of a question of privilege on which I will return to the House with a ruling. I also indicated to the member that, in any case, the letters he is seeking are available through Elections Canada and that he should contact that office to obtain copies.
Some time later, the hon. member for Malpeque rose in the House to restate the request made earlier by the member for Saint-Léonard—Saint-Michel and asked the Chair to reconsider. Commenting on the Chair and what he considers to be the Chair’s responsibilities, he argued:
A letter with that kind of content, referring to the ability of members to sit in this House of Commons...is...a letter to all of us. That letter should be tabled...by the Chair.
I wish to review for the House the role of the Chair with regard to the tabling of any document.
The Speaker, like ministers and parliamentary secretaries, generally tables documents in accordance with statutory requirements or the Standing Orders. House of Commons Procedure and Practice, second edition, at pages 435 and 436, lists the kinds of documents the Speaker is normally called on to table.
Outside of the sorts of documents enumerated in O'Brien and Bosc, the Chair is not aware of any precedent or practice that would suggest that letters to the Speaker, even letters from an officer of Parliament, are, de facto, letters to the House, as has been suggested. The Chair does not know of any statutory or Standing Order authority that would lead to letters of this kind being tabled.
The Canada Elections Act is explicit in prescribing what reports and documents the Speaker must table and when they must be tabled. As an example, earlier this week, on June 5, pursuant to provisions of section 536 of the Canada Elections Act, I tabled a report of the Chief Electoral Officer regarding the qualifications and process of appointment of returning officers.
The Chair is mindful of its responsibilities to all members, that is, to the House as a whole and to each member as an individual parliamentarian. Similarly, every exchange with an agent of Parliament is one that I take seriously, and this is perhaps especially true of the Chief Electoral Officer, who oversees the very processes by which Canadians elect us. It seems to me all the more important that our respective roles and responsibilities be understood and respected when we are dealing with difficult issues, issues on which there is heated debate.
In the case before us, I believe that the responsibility for putting into the public domain the correspondence initiated by the Chief Electoral Officer rests with the Chief Electoral Officer. This he has done and continues to do on an ongoing basis by making available for consultation in his office a wide range of documents that it is Elections Canada's practice to make public. I trust this clarifies the Chair's approach to the situation for all hon. members.
Finally, let me say that I will return to the House as soon as I can with a ruling on the question of privilege raised by the hon. member for Avalon and, until I do so, I urge members to be judicious in their interventions and to avoid making erroneous assumptions.
I thank the House for its attention.
Points of Order June 6th, 2013
I am now prepared to rule on a point of order raised on May 29, by the hon. House Leader of the Official Opposition regarding the process followed by the Standing Committee on Finance with respect to its consideration of Bill C-60, An Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures.
I would like to thank the hon. House Leader of the Official Opposition for having raised this issue, and the hon. Leader of the Government in the House of Commons and the members for Winnipeg North, Richmond—Arthabaska and Saanich—Gulf Islands for their interventions.
In raising this point of order, the opposition House leader claimed that the order adopted by the Standing Committee on Finance on May 7, respecting its consideration of Bill C-60, went beyond the committee's authority as conferred by the House. Specifically, he explained that the committee order invited certain other standing committees to study different parts of the bill and, along with independent members, to submit amendments to the Standing Committee on Finance.
He explained further that the committee order also provided that such amendments would be deemed moved so that the committee could consider and vote on them. This, he argued, was an instance of a committee exceeding its prescribed authority, since the House had determined that the bill was sent to the finance committee only and since House rules dictate that committee membership is determined solely by the House and cannot include members of non-recognized parties. In addition, he noted that it contravened the rule that only committee members can move motions and that even they must, in fact, be present at the committee to do so.
The Leader of the Government in the House of Commons contended that it was an established practice that one standing committee could invite other standing committees to consider the subject matter of relevant sections of a bill it is studying with a view to submitting amendments. Furthermore, he suggested that the inclusion of independent members in the committee’s proceedings was part of an evolutionary process, one that was in no way discriminatory since the deadline for submitting amendments was the same for all concerned: independent members, other committees and even members of the committee itself. He explained that, in effect, this process was simply an effort by the committee to respond directly to the suggestion that I had made in a ruling on December 12, 2012, on a similar matter.
For her part, the hon. member for Saanich—Gulf Islands questioned whether the committee process was in procedural conformity with my ruling, as well as whether, as a result of the committee order, her rights as a member had somehow been restricted, even put aside. The hon. member for Richmond—Arthabaska made similar arguments, highlighting what he perceived to have been an erosion of his rights with regard to the submission of amendments at report stage.
In the case before us, in many respects, is a logical evolution of procedural events that have unfolded in the last year, and indeed of events of over 10 years ago. In fact, to place the matter in its proper context, it is necessary to refer to the March 21, 2001, statement by Speaker Milliken, found at page 1991 of the Debates, which set us on a path to where we are today with respect to the committee and report stages of the legislative process. That statement clearly established the guidelines that the chair now uses to discharge its responsibility with respect to the selection of amendments at report stage. Indeed, the very process of selection was born out of a need to return report stage to its original purpose, that is, the consideration of only those amendments that could not have been moved in committee.
Speaker Milliken was clear in his intent when he urged:
...all members and all parties to avail themselves fully of the opportunity to propose amendments during committee stage so that the report stage can return to the purpose for which it was created, namely for the House to consider the committee report and the work the committee has done...
These guiding principles are embodied in the interpretive notes attached to Standing Orders 76(5) and 76.1(5), which have allowed committees to a large extent to remain the central focus for the detailed study of bills, thereby ensuring that report stage not become a repetition of committee stage.
House of Commons Procedure and Practice, Second Edition, explains, at pages 783 and 784:
As a general principle, the Speaker seeks to forestall debate on the floor of the House which is simply a repetition of the debate in committee…Furthermore, the Speaker will normally only select motions in amendment that could not have been presented in committee. A motion previously defeated in committee will only be selected if the Speaker judges it to be of such significance to Members as to warrant further consideration at report stage.
However, the strength of these guidelines has been tested in the recent past as the House faced voluminous report stage proceedings, first in June 2012 with Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, and then in November 2012 with C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.
These two cases brought into sharp relief the difficulties faced by independent members with respect to committee proceedings on bills, specifically in reference to the provisions of Standing Order 119, which do not permit a member who is not a member of the committee to move any motion, nor to vote, nor to be part of any quorum. These circumstances cause some members to call into question the ability of the House's rules and practices to safeguard the intended purpose of report stage.
They also gave rise to a ruling on December 12, 2012, in which I addressed the issue of the participation of independent members in the process of amending bills, particularly in committee. In that ruling, I suggested that, until committees found a way to enable independent members to have their amendments considered at the committee stage, the Chair would continue to allow them to do so at report stage. I stated at that time, at page 13224 of the House of Commons Debates:
The Standing Orders currently in place offer committees wide latitude to deal with bills in an inclusive and thorough manner that would balance the rights of all members.
…there is no doubt that any number of procedural arrangements could be developed that would ensure that the amendments that independent members wish to propose to legislation could be put in committee.
To answer this fully would be to ask the Chair to reach into and adjudicate upon committee matters, a practice the House has long resisted, given that committees are masters of their own proceedings, as we are apt to say.
In my ruling of November 29, 2012, on a similar case, consistent with these long-standing practices of the House, I informed members that in the absence of a report from the committee, the Chair would not delve further into committee matters. In doing so, I quoted Speaker Milliken, who on November 27, 2002, stated:
As Speaker, I appreciate the responsibility that I have to defend the rights of all members and especially those of members who represent minority views in the House. At the same time, it is a long tradition in this place that committees are masters of their own proceedings. Ordinarily the House is only seized of a committee matter when the committee reports to the House outlining the situation that must be addressed.
He then added:
That being said, it is true as well that committees are permitted a greater latitude in the conduct of their proceedings than might be allowed in the House. It may not always be clear in a particular set of circumstances how best to proceed and so the ultimate decision is left to the committee itself.
At the same time, the Chair is also cognizant of its responsibility for the selection of report stage motions and the fact that what happened in the finance committee in this instance has had a direct bearing on my selection decisions in the case of the report stage of Bill C-60 and on independent members. Accordingly, the Chair feels compelled to address some of the issues raised, particularly as they relate to their impact on independent members.
As I understand it, the principal concern raised about the committee process was the committee's decision to deem moved any amendments submitted by independent members and certain other committees during the committee's clause-by-clause consideration. The main concern expressed by the opposition House leader with this manner of proceeding is that in his view it exceeded the committee's mandate. He argued that to deem motions to be moved is a clear violation of Standing Order 119, which stipulates that only permanent members of a standing committee can move motions. The opposition House leader stated that as a result, the process adopted by the finance committee was fundamentally flawed.
It should come as no surprise to members that the House and its committees frequently resort to procedural motions to facilitate the flow of business. Procedure in committee is particularly fluid and varied, and many committees routinely use a wide array of processes to organize their work. Deeming things to have taken place is part of that body of precedent.
In the House, this is often achieved by deciding to forgo the usual procedural steps and to assume that certain procedural transactions have taken place even if they have not. For example, it happens from time to time that the House will see fit to adopt a bill at all stages, deeming that each stage has been agreed to. No movers' names are attached to the motions for second reading, concurrence at report stage or third reading.
Similarly, practically on a weekly basis, recorded divisions are deemed demanded and deferred. Again, no members' names are attached to the motions that make this possible. In fact, the House has even been known to tinker with the time-space continuum by deeming it to be a certain time, even when it is not, and by making, say, a Tuesday to be a Monday, as was done a few weeks ago on May 21. Again, no names of members are attached to the motions that make this possible.
Our House and committee annals are rife with examples of this kind. These commonly used procedural instruments are even provided for in some of our Standing Orders. What may be causing difficulty in this case is that while the practice of “deeming” is most often achieved through unanimous consent, it can also occur by majority decision, but of course at greater cost in House or committee time.
In the case before us, it appears that this is the approach that was used by the finance committee. A motion setting out the process to be followed was proposed, debated and ultimately agreed to. As far as the Chair can see, in the absence of a report from the committee to the contrary, Standing Order 119 was not flouted in the process. Instead, it appears rather that a procedural instrument was devised to provide for the manner in which the committee would conduct its business.
Turning to the issue of the rights of independent members, the Chair can only observe that the decision of the finance committee permitted them to do something they could not do before: namely, to have their amendments considered in the committee and, indeed, to be granted, pursuant to Standing Order 119, an opportunity to speak in committee. This is something that was not open to them before. In that sense, they succeeded in obtaining a form of participation in committee proceedings, as imperfect as it may have been in their eyes.
As Speaker, I can only speculate on whether other committees will emulate or, dare I say, perhaps even expand on the spirit of inclusion witnessed in the Standing Committee on Finance.
In summary then, while I am entirely sympathetic to the procedural consequence of this development for independent members at report stage, I must remind the House again of my obligation to ensure that report stage not become a repeat of the committee stage.
As a guardian of the rights and privileges of all members, it is also my duty in this case to ensure that the rules, practices and expectations of the House are upheld and, in so doing, ensure that members are afforded an opportunity to participate in the legislative process. To protect the integrity of report stage, the Chair would have to know that there was no mechanism at all, not just an unsatisfactory one, for a member to move motions in committee.
It is true that the rules of the House may result in varying degrees of participation for members, depending on the proceeding and depending on the status of that member for that proceeding. For instance, members of committees enjoy opportunities that non-committee members do not, and even committee members have varying opportunities to participate.
What the Chair must protect is members' rights to have some mechanism to put forward their ideas.
It is for these reasons that the Chair did not select any motions at report stage that could have been considered, or were considered, in committee.
Accordingly, for all these reasons, I cannot conclude that the rights of independent members have been diminished as a result of the proceedings in the Standing Committee on Finance, particularly when scores of members who were not members of the finance committee, and thus not in a position to propose amendments there, are likewise subjected to the very same report stage restrictions.
In addition, noting that this is a departure from the Chair's long-established practice of not commenting on committee proceedings, again in the absence of a report to the contrary on which to base its interventions, the Chair concludes that Bill C-60 is properly before the House and that it cannot find that a procedurally improper proceeding has taken place in the Standing Committee on Finance.
I would like to thank all hon. members for their attention on this matter.
Points of Order May 22nd, 2013
I am now prepared to rule on the point of order raised on May 21, 2013 by the hon. House leader of the official opposition regarding the admissibility of Government Business No. 17, a motion to provide for the extension of sitting hours and the conduct of extended proceedings.
The opposition House leader claimed that this motion was “contrary to the rules and privileges of Parliament”, including Standing Order 27(1), which specifically allows for extended sittings during the last 10 sitting days in June, and therefore that the Speaker should, pursuant to Standing Order 13, find this motion out of order.
In response, the government House leader cited pages 257 and 258 of House of Commons Procedure and Practice, Second Edition, to demonstrate that the House may deviate from the Standing Orders for a limited period of time by adopting special orders, which can be done by way of a government motion decided by a majority vote.
As Members know, the House frequently extends its sitting hours in the month of June, prior to its summer recess. The opposition House leader is correct in stating that, pursuant to Standing Order 27(1), the House can extend its sitting hours for the last 10 sitting days in June, prior to its summer recess. This has been done on a number of occasions. However, it is also true that that particular Standing Order does not limit the ability of the House to alter its sitting hours on days other than those in June prescribed by Standing Order 27(1). Should the House wish to extend its sittings at times outside that specific period, it would need to do so either by way of a motion decided by a majority vote of the House, or by unanimous consent.
Both of these methods have been used from time to time. I would refer members to footnote 113 on page 404 of O’Brien and Bosc for examples of this type of motion that have been adopted in the past.
A review of past examples also shows that, while motions related to sittings and proceedings are frequently moved under the rubric “Motions” during routine proceedings, such motions have also been moved under government orders. As cited in House of Commons Procedure and Practice, second edition, at page 454:
The Chair has consistently ruled that the Government House Leader should be the one to introduce any motion pertaining to the arrangement of House business, and that the motion may be considered under “Motions” or under Government Orders, depending on where the Minister giving notice has decided to place it.
Therefore, the Chair can find no evidence that either the rules or the privileges of the House have been breached and so I find Government Motion No. 17 to be in order.
I thank all members for their attention in this matter.
Points of Order May 21st, 2013
Before moving on to questions and comments, I am now prepared to rule on the point of order raised on April 25 by the hon. member for Toronto Centre regarding the eighth report of the Standing Committee on Citizenship and Immigration, recommending that the scope of Bill C-425, An Act to amend the Citizenship Act (honouring the Canadian Armed Forces), be expanded.
I would like to thank the hon. member for Toronto Centre for having raised this issue, and the hon. Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition, the Parliamentary Secretary to the Minister of Citizenship and Immigration, the Parliamentary Secretary to the Leader of the Government in the House of Commons, and the members for Winnipeg North, Saint-Lambert and Calgary Northeast for their interventions.
In raising this matter, the hon. member for Toronto Centre explained that during its consideration of Bill C-425, the Standing Committee on Citizenship and Immigration adopted a motion recommending that the House grant the committee the power to expand the scope of the bill in order to allow for the consideration of what he called “amendments that the Minister of Citizenship, Immigration and Multiculturalism has asked be added to the list”.
This led to the presentation on April 23, 2013, of the committee's eighth report. He found this approach to be problematic in two respects. First, he argued that pursuant to Standing Order 97.1, committees examining private members' bills are restricted as to the types of reports they can present to the House. He argued essentially that since the eighth report falls outside these parameters, it is out of order.
His second argument centred on the impact such a manner of proceeding could have. Specifically, he expressed concern that if committees examining private members' bills were to be allowed latitude to proceed in this fashion, the effect of this practice “will be that the government could, by extrapolation, even add an omnibus feature to a private member’s bill and say it is using its majority to add everything, the whole kitchen sink, into the measure.”
The Government House Leader explained that, in view of the differences of opinion expressed in the committee as to whether the amendments proposed were within the scope of the bill, the committee was seeking guidance from the House on the matter. In making this observation, he pointed out that this process would result in a number of hours of debate in the House on the committee report before a decision was taken.
In his presentation the Parliamentary Secretary to the Leader of the Government in the House of Commons argued that Standing Order 97.1 does not preclude a committee from seeking an instruction from the House in relation to a private member's bill. He further explained that the committee remains seized of Bill C-425 and that its eighth report in no way supersedes the 60-sitting-day deadline to report the bill back to the House.
At the outset the Chair wishes to clarify what appear to be certain misconceptions about the nature of private members' bills.
The first of these has to do with the arguments made by the House leader for the official opposition and the member for Saint-Lambert in reference to the constitutional compliance of legislation sponsored by private members.
As pointed out by the member for Saint-Lambert, constitutional compliance is among the criteria used by the Subcommittee on Private Members' Business to determine non-votability of private members' bills. House of Commons Procedure and Practice, second edition, describes these criteria at page 1130, including one requirement that “bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms”.
The Chair is not aware of further constitutional compliance tests that are applied to any kind of legislation, whether sponsored by the government or by private members, once bills are before the House or its committees. In addition, hon. members will recall that in a recent ruling delivered on March 27, I reminded the House that as Speaker I have no role in interpreting matters of a constitutional or legal nature.
Another apparent source of confusion has to do with the difference between private bills and public bills. Virtually all the bills that come before the House are public bills, whether they are sponsored by private members or by the government.
As O'Brien and Bosc explains at page 1178:
Private bills must not be confused with private Members' bills. Although private bills are sponsored by private Members, the term “private Member's bill” refers only to public bills dealing with a matter of public policy introduced by Members who are not Ministers.
Thus both government and private members’ bills are subject to the same basic legislative process, namely introduction and first reading, second reading, committee stage, report stage and, finally, third reading. At the same time, the House has seen fit to devise specific procedures for dealing with public bills sponsored by the government and private members alike.
For example, Standing Order 73 allows the government to propose that a government bill be referred to committee before second reading after a five-hour debate. The purpose of this rule is to allow greater flexibility to members in committee by enabling them to propose amendments to alter the scope of the measure.
The procedures in place for dealing with private members’ bills are likewise many layered, and have evolved in response to particular situations faced by the House in the past. This is the case with the provision for a maximum of two hours of debate at second reading, which came about to allow the House to consider more items and thus to allow more private members to have their measures considered. Similarly, Standing Order 97.1 was originally brought in to ensure that private members’ bills referred to committee would be returned to the House and to the order of precedence in a timely fashion.
In the present case, it appears to the Chair that the essence of the procedural question before me is to determine whether the House has the power to grant permission to a committee to expand the scope of a private member's bill after that scope has been agreed to by the House at second reading and, if so, whether this can be achieved by way of a committee report.
House of Commons Procedure and Practice, second edition, is helpful in this regard. It states at page 752:
Once a bill has been referred to a committee, the House may instruct the committee by way of a motion authorizing what would otherwise be beyond its powers, such as, for example, examining a portion of a bill and reporting it separately, examining certain items in particular, dividing a bill into more than one bill, consolidating two or more bills into a single bill, or expanding or narrowing the scope or application of a bill.
Clearly then, by way of a motion of instruction, the House can grant a committee the power to expand the scope of a bill, be it a government bill or a private member's bill. An example can be found at page 289 of the Journals for April 27, 2010, where an opposition member moved a motion of instruction related to a government bill.
Having established that the House does have the authority to grant permission to a committee to expand the scope of a bill through a motion of instruction, the question becomes whether a committee report is also a procedurally valid way to achieve the same result.
The member for Toronto Centre is correct in saying that the explicit authority to present this type of report is not found in Standing Order No. 97.1, which exists to oblige committees to respect deadlines for reporting back to the House on private members' bills. In that respect, Standing Order No. 97.1 continues to apply.
However, Standing Order No. 108(1)(a) does grant committees this power under their more general mandate to:
examine and enquire into all such matters as may be referred to them by the House [and] to report from time to time
In describing the three broad categories of reports that standing committees normally present, O’Brien and Bosc, at page 985, describe administrative and procedural reports as those:
in which standing committees ask the House for special permission or additional powers, or those that deal with a matter of privilege or procedure arising from committee proceedings.
An example of a committee reporting on a matter related to a bill may be found in the Journals of April 29, 2008, where, in its sixth report, the Standing Committee on Environment and Sustainable Development felt compelled to provide reasons why it did not complete the study of a particular private member’s bill.
Finally, O'Brien and Bosc, at page 752, further state:
A committee that so wishes may also seek an instruction from the House.
This undoubtedly could be done only through the presentation of a committee report to the House.
What this confirms is that the authority of the House to grant permission to a committee to expand the scope of a bill can be sought and secured, either through a motion of instruction or through concurrence in a committee report.
O’Brien and Bosc summarizes this well at page 992:
If a standing, legislative or special committee requires additional powers, they may be conferred on the committee by an order of the House—by far the most common approach—or by concurrence in a committee report requesting the conferring of those powers.
Later, O’Brien and Bosc explain, at page 1075:
Recommendations in committee reports are normally drafted in the form of motions so that, if the reports are concurred in, the recommendations become clear orders or resolutions of the House.
Just as the adoption of a motion of instruction to a committee would become an order of the House, so too would the adoption of a committee report requesting the permission of the House to expand the scope of a bill.
Of course, it has always been the case that instructions to a committee must be in proper form. According to O’Brien and Bosc, at page 754, such instructions must be “worded in such a way that the committee will clearly understand what the House wants”.
It is nevertheless clear to the Chair that there is genuine disquiet about the impact of this attempted procedural course of action. The Chair is not deaf to those concerns and, in that light, wishes to reassure the House that this manner of proceedings does not obviate the need for committees to observe all the usual rules governing the admissibility of amendments to the clauses of a bill, which are described in detail at pages 766 to 761 of House of Commons Procedure and Practice, second edition.
In particular, granting a committee permission to expand the scope of a bill does not, ipso facto, grant it permission to adopt amendments that run counter to its principle. Were a committee to report a bill to the House containing inadmissible amendments, O’Brien and Bosc at page 775 states:
The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage. The admissibility of the amendments is then determined by the Speaker of the House, whether in response to a point of order or on his or her own initiative.
For all of the reasons outlined, I must conclude that the eighth report of the Standing Committee on Citizenship and Immigration is in order. I thank all hon. members for their attention.
Privilege April 23rd, 2013
I am now prepared to rule on the question of privilege raised on March 26 by the member for Langley regarding the presentation of a member's statement pursuant to Standing Order 31.
I would like to thank the hon. member for Langley for having raised this matter, as well as the hon. Chief Government Whip, the hon. House Leader of the Official Opposition, the hon. House Leader of the Liberal Party, and the members for Vegreville—Wainwright, Saanich—Gulf Islands, Lethbridge, Winnipeg South, Edmonton—St. Albert, Brampton West, Kitchener Centre, New Brunswick Southwest, Wellington—Halton Hills, Glengarry—Prescott—Russell, South Surrey—White Rock—Cloverdale, Medicine Hat, West Vancouver—Sunshine Coast—Sea to Sky Country, Halifax, and Thunder Bay—Superior North for their comments.
In raising his question of privilege, the member for Langley explained that, shortly before he was to rise during statements by members on March 20, he was notified by his party that he could no longer make his statement because, as he put it, “the topic was not approved”. In making his case, he argued that the privilege of freedom of speech is designed to allow members to discharge their responsibility to ensure that their constituents are represented.
While the member accepted the practice of parties submitting lists of members to the Speaker, he objected to this being managed in such a way that the equal right to speak could be removed. He stated, “If at any time that right and privilege to make an S. O. 31 on an equal basis in this House is removed, I believe I have lost my privilege of equal right that I have in this House”. He further argued that, ultimately, it is only the Speaker who has the authority to remove a member's opportunity to speak and that the equal opportunity of every member to make statements pursuant to Standing Order 31 must be guaranteed.
In his intervention, the Chief Government Whip reminded the House that all recognized parties resort to the use of speaking lists and that, “The practice for many years in the House is for the Speaker to follow the guidance provided by the parties...”. He added that since the preparation of lists is an internal affair of party caucuses, it is not something the Speaker ought to get involved in.
For his part, the House Leader of the Official Opposition suggested there exists a role for the Speaker in regulating the natural tension between members and their parties, and the right to speak in Parliament. He went further, saying, “The issue is the need for members of Parliament to speak freely on behalf of those whom we seek to represent” and in support of this view, he cited House of Commons Procedure and Practice, Second Edition, which states at page 89:
By far, the most important right afforded to members of the House is the exercise of freedom of speech in parliamentary proceedings.
However, he also noted that, with the entrenchment of the practice whereby whips determine which of their members will speak and the concurrent absence of a Standing Order explicitly allowing the Speaker to intervene in that process, he questioned whether the will and support of the House would be required before the Chair could do so.
Several other members intervened in support of the member for Langley, while another echoed the comments of the Chief Government Whip. For his part, the member for New Brunswick Southwest suggested that I should expand my review of this matter to include lists not just for statements by members but also for question period.
I wish to begin by reminding the House of the role of the Chair in determining matters of privilege. O’Brien-Bosc, at page 141, states:
Great importance is attached to matters involving privilege. …The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the member who has raised the question to move a motion which will have priority over orders of the day; that is, in the Speaker’s opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.
I also wish to address what seems to be a widespread misconception about the role of the Speaker in matters of this kind. Several members have used sports analogies to describe me as a referee or a league convener. Perhaps there are elements of a referee role for the Speaker, but with one important difference: there is no league that appoints the Speaker to enforce rules from on high in a vacuum. Instead, here in the House of Commons, the members elect a Speaker from among the membership to apply rules they themselves have devised and can amend. Thus, it is only with the active participation of the members themselves that the Speaker, who requires the support and goodwill of the House in order to carry out the duties of the office, can apply the rules.
As is stated in O'Brien and Bosc, at page 307:
Despite the considerable authority of the office, the Speaker may exercise only those powers conferred upon him or her by the House, within the limits established by the House itself.
In making their arguments in this case, several members have correctly pointed out the fundamental importance of freedom of speech for members as they carry out their duties. House of Commons Procedure and Practice, Second Edition, at page 89 refers to the freedom of speech of members as:
...a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.
The Speaker's role in safeguarding this very privilege is set out in O'Brien and Bosc at page 308. “The duty of the Speaker is to ensure that the right of Members to free speech is protected and exercised to the fullest possible extent...”.
This last citation is particularly important since it highlights a key reality, namely that there are inherent limits to the privilege of freedom of speech. Aside from the well-known prohibitions on unparliamentary language, the need to refer to other members by title, the rules on repetition and relevance, the sub judice constraints and other limitations designed to ensure that discourse is conducted in a civil and courteous manner, the biggest limitation of all is the availability of time.
I need not remind the House that each and every sitting day, a vast majority of members are not able to make a statement pursuant to Standing Order 31 as there simply is not enough time available. It is likely for this reason that the standing order states that members “may”, not shall, be recognized to make statements. Hence, while many members in this instance have spoken of the right to speak, the member for Langley acknowledged this inherent limitation and spoke more precisely of the equal right to speak. It is this qualifier of rights—equity—that carries great significance, and to which the Chair must play close attention.
Put another way, the Chair is being asked by the member for Langley whether the practice of whips providing the Speaker with the names of members who are to be recognized to speak during statements by members represents an unjust limitation on his freedom to speak, to the extent that such opportunities are not afforded to him on an equitable basis.
There is no denying that close collaboration has developed over time between the Chair and party whips to find ways to use the time of the House as efficiently as possible and to ensure that all parties are treated equitably in apportioning speaking time. In some cases—the timing of recorded divisions comes to mind—the Standing Orders enshrine a specific role for the whips. In other cases, there is no standing order, but rather a body of practice that the House follows and that evolves over time.
A reading of the history of members' statements at pages 420 to 422 in O'Brien and Bosc tells us that our practice in that regard has had to adjust and respond to changing circumstances on more than one occasion, with each practice enduring only so long as it matched its era and the will of the House.
By 1982, it had settled into what we know it to be today—that is, the order and number of slots to be allotted to members of different political affiliations are agreed upon by the parties at the beginning of a Parliament and adjusted from time to time as necessary. Then, at each sitting, the names of members who are to fill the designated speaking slots are provided to the Speaker by the whips of the different recognized parties and by the independent members. Even if not enshrined in the Standing Orders, generally the House has been well served by this collaboration, and the lists have helped the Chair to preside over this portion of each sitting day in an orderly fashion.
However, does this mean that the Chair has ceded its authority to decide which members are to be recognized? To answer this question, it is perhaps useful to review the history of the lists, which were first used for question period in the 1970s.
At page 61 in his memoir, Mr. Speaker, in which he describes his time in the Chair, Speaker Jerome explains that he was comfortable using a party's suggested lists “...so long as it didn't unfairly squeeze out their backbench”.
In a June 19, 1991, ruling found at page 2072 of the Debates, Speaker Fraser was even more categorical about the authority of the Chair. In response to a member who asked if the Chair was bound to follow a set list in recognizing members, he said:
I appreciate the hon. member's intervention and my answer is yes, there is a list. I am not bound by it. I can ignore that list and intervene to allow private members, wherever they are, not only to ask questions but also to ask supplementals. That is a right which remains with the Chair and I do not think it has ever been seriously challenged. I would remind all hon. members that it is a right which the Chair has had almost since: “The memory of man runneth not to the contrary”.
The authority the Speaker has in this regard is likewise described in House of Commons Procedure and Practice, second edition, at page 318, which states:
No Member may speak in the House until called upon or recognized by the Speaker; any Member so recognized may speak during debate, questions and comments periods, Question Period, and other proceedings of the House. Various conventions and informal arrangements exist to encourage the participation of all parties in debate; nevertheless, the decision as to who may speak is ultimately the Speaker's.
It further states on page 595:
Although the Whips of the various parties each provide the Chair with a list of Members wishing to speak, the Chair is not bound by these.
Similarly, Beauchesne's Parliamentary Rules and Forms, Sixth Edition, on page 137, states that
…the Speaker is the final authority on the order of speaking.
I myself have seen fit from time to time to deviate from the lists, usually in an effort to preserve order and decorum during statements by members and question period.
Accordingly, the Chair has to conclude, based on this review of our procedural authorities and other references, that its authority to decide who is recognized to speak is indisputable and has not been trumped by the use of lists, as some members seemed to suggest.
I might add as an aside that the use of lists in general has inadvertently created an ongoing problem for the Chair. In some cases, members do not stand to be recognized because they are on a list and thus think they will automatically be recognized when their turn comes around. As Acting Speaker Bob Kilger put in a statement found at page 3925 of the Debates on May 5, 1994:
We speak about or refer to these unofficial lists that we have, which are somewhat helpful at times, but in the end members seeking the floor of course are those who will be recognized by the Chair.
Thus, the need to “catch the Speaker’s eye”, as it is called, continues to underpin the Chair’s authority in this respect.
Members are free, for instance, to seek the floor under questions and comments at any time to make their views known. They are also free at any time to seek the floor to intervene in debate itself on a bill or motion before the House. Ultimately, it is up to each individual member to decide how frequently he or she wishes to seek the floor, knowing that being recognized by the Speaker is not always a guaranteed proposition.
The right to seek the floor at any time is the right of each individual member of Parliament and is not dependent on any other member of Parliament.
On the narrow question of the removal of the member for Langley from his party’s lineup for statements by members on March 20, the Chair cannot conclude that there is a prima facie finding of privilege. No evidence has been presented to me that the member has been systematically prevented from seeking the floor. The Chair has found that the member for Langley has been active under several rubrics since the beginning of this Parliament. He has made statements under statements by members on a variety of subjects, has presented petitions, has made speeches and risen on questions and comments under government orders, has made speeches under private members’ business and has risen in question period. As I said earlier, he has remained free to seek the floor at any time, like all other members.
However, on the broader question of the equitable distribution of statements by members, a review of the statistics reveals that the member may well have a legitimate concern. This goes to the unquestionable duty of the Speaker to act as the guardian of the rights and privileges of members and of the House as an institution. This includes ensuring that, over time, no member wishing to speak is unfairly prevented from doing so.
Even so, as Speaker I cannot exercise my discretion as to which member to recognize during statements by members or at any other time of the sitting day if only one member is rising to be recognized. As previously mentioned, due to an overreliance on lists, more often than should be the case, even those members on the list do not always rise to be recognized.
Were the Chair to be faced with choices of which member to recognize at any given time, then of course the Chair would exercise its discretion. However, that has not happened thus far during statements by members, nor, for that matter, during question period. Until it does, the Chair is not in a position to unilaterally announce or dictate a change in our practices. If members want to be recognized, they will have to actively demonstrate that they wish to participate. They have to rise in their places and seek the floor.
In the meantime, I will continue to be guided by the lists that are provided to me and, when and if members are competing for the floor, will exercise my authority to recognize members, not in a cavalier or uninformed manner but rather in a balanced way that respects both the will of the House and the rights of individual members.
I would like to thank all honourable members for their attention during this rather lengthy ruling.