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.

Privilege April 18th, 2013

Yesterday, the members for Ottawa—Vanier and Toronto—Danforth both rose on a question of privilege regarding the possible premature disclosure of the contents of a government bill prior to its introduction in the House.

Both members referenced an article that appeared in the Globe and Mail newspaper that suggested that during the weekly Conservative Party caucus meeting, some Conservative members had expressed concerns about how specific sections of the bill were drafted and had asked that they be rewritten. The members for Ottawa—Vanier and Toronto—Danforth suggested that this demonstrated that the Conservative members may have been provided with the actual text of the draft bill in question. Both members emphasized the seriousness of the premature disclosure of bills and asked the Chair to investigate this matter.

In response, the Leader of the Government in the House assured the House that at the caucus meeting held by the Conservative Party that day, no draft copies of the bill or sections of it were circulated or displayed, nor were excerpts provided.

As members know, it is a well-established practice that the contents of a bill are kept confidential until introduced in Parliament, thus making their premature disclosure a serious matter. However, in this case, a careful reading of the arguments presented to the Chair about what transpired reveals that the concerns expressed appear to be based more on conjecture and supposition than on actual evidence.

Furthermore, the government House leader has stated categorically to the House that no copies, sections or excerpts of said bill were in any way made available to those who were in attendance at the caucus meeting. In other words, he challenges the supposition being made, and he insists that there was no breach of confidentiality regarding the bill.

In light of the lack of evidence and the minister's categorical assurances, the Chair considers the matter closed.

I thank members for their attention.

March 27th, 2013

On Wednesday, March 6, 2013, due to many recorded divisions taken that day, private members' hour was cancelled pursuant to Standing Order 30(7). For that reason, the second hour of debate on Motion No. 412, standing in the name of the member for Nipissing—Timiskaming, did not take place.

Standing Order 30(7) states that this business “shall be added to the business of the House on a day to be fixed, after consultation, by the Speaker”. The Standing Orders then set out two conditions for the selection of the new date. First, the Speaker must attempt to “designate that day within the next ten sitting days” and, second, the Speaker must not permit “the intervention of more than one adjournment period”.

The debate therefore has to take place tomorrow at the latest, following private members' hour. However, I would remind the House that pursuant to an order made on Monday, February 25, 2013, the House will adjourn at 2:30 p.m. I am reluctant to interfere with that schedule, as it precedes an adjournment period for which members will no doubt have already made their travel plans.

Since we are now past 7 p.m., the House would normally be faced with having to reschedule the item, an option that is clearly not possible for the reasons I have just outlined.

Last week I was informed that there were consultations and that it was agreed that the second hour of debate on Motion No. 412 would be added to today's proceedings.

Being now faced with an unforeseen situation and bound by the provisions of Standing Order 30(7), I wish to inform the House that private members' business will indeed take place today, with the two items scheduled for debate as indicated on the notice paper. In doing so, the Chair is mindful of his obligations to “make all arrangements necessary to ensure the orderly conduct of private members' business”, as set out in Standing Order 94.

I thank hon. members for their collaboration.

It being 7:12 p.m, the House will now proceed to the consideration of private members' business as listed on today's order paper.

Privilege March 27th, 2013

I am now prepared to rule on the question of privilege raised on March 6, 2013 by the member for Winnipeg Centre regarding the Minister of Justice's statutory obligation to examine government bills and regulations to determine whether they are inconsistent with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

I would like to thank the hon. member for Winnipeg Centre for having raised this matter, as well as the Minister of Justice and Attorney General of Canada, the hon. Leader of the Government in the House of Commons, the hon. House Leader of the Official Opposition and the members for Saanich—Gulf Islands, Winnipeg Centre, Mount Royal and Gatineau for their comments.

In raising this question of privilege, the member for Winnipeg Centre explained that, pursuant to certain statutory requirements, the Minister of Justice is required to examine all government bills and regulations in order to determine whether they are actually inconsistent with the Charter of Rights and Freedoms and the Bill of Rights. He cited section 3 of the Canadian Bill of Rights, which states:

...the Minister of Justice shall…examine every regulation…and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons.

The hon. member then claimed that if the allegations contained in an action filed in the Federal Court by Mr. Edgar Schmidt, a Department of Justice official, are proven to be true, the minister has flouted these statutory requirements. He contends that the minister manages the risk of inconsistency in a cavalier fashion, and he argues that by allowing legislation to be introduced in the House that has a possibility of being inconsistent with the Charter of Rights and Freedoms or the Bill of Rights, the minister misleads Parliament, thus leaving members with no reliable assurance that proposed legislation is not in violation of the charter and the Bill of Rights.

The member asked that the Chair find that the minister's approach had thus effectively impeded members in performing their duty to exercise due diligence in considering government bills. I note that to do so, the Chair would first need to establish whether the Minister of Justice had acted in accordance with his statutory obligations.

That said, while the member for Winnipeg Centre went on to admit that there exists no evidence that the Minister of Justice deliberately, or even implicitly, gave the House inaccurate information, he claimed that there are serious deficiencies in the examination and vetting of draft government legislation by the Minister of Justice as evidenced by a number of legal challenges to legislation believed to be inconsistent with the charter and the Bill of Rights.

The member contended that even though the matter is before the courts, the sub judice convention does not prevent the House from considering this question of privilege, as it is in no way dependent on the findings of the court, nor will the debate on the question of privilege interfere with the court in carrying out its duties. Acknowledging that questions of privilege must be raised at the earliest opportunity, the member for Winnipeg Centre assured the House that he brought this matter to the attention of the House as quickly as he could bring the research together, given the complexity of this question of privilege.

In response, the Minister of Justice insisted that the matter was not raised at the first opportunity since the court action in question was filed on December 14, 2012, leaving the member many opportunities to have raised this matter in the intervening months—as many other members had done in both committees and in the House. Second, the minister argued that the Chair has no jurisdiction over questions of law, which are for the courts alone to decide. Third, the minister suggested that the sub judice convention dictates that since the matter is before the courts, the House should allow the courts to resolve the matter before undertaking any debate on the matter.

The Minister of Justice noted that the member for Winnipeg Centre had failed to provide any evidence that the House and its members were in any way impeded in carrying out their duties. The minister stated categorically that “this government has never introduced any legislation that I believe was inconsistent with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights”.

He went on to remind the House that the member for Winnipeg Centre had acknowledged that he had “no evidence” to suggest that the minister provided deliberately inaccurate information to the House about government bills.

The Chair has listened attentively to members’ interventions on this matter and it seems to me that this question of privilege involves three key points: namely, the timeliness of the question of privilege; the sub judice convention; and the Speaker’s role in determining matters of law.

Regarding timeliness, both the member for Winnipeg Centre and the Opposition House Leader explained that it was only after some time-consuming initial research that the member felt compelled to raise the matter in the form of a question of privilege.

Furthermore, I was interested in the statement of the member for Gatineau, who noted that this question of privilege was raised only after efforts to consider the matter in committee had failed.

While I might come to a different conclusion if the question at issue related directly to a specific incident in the House with regard to this particular question of privilege, I am satisfied with the explanations offered and will not rule this question out of order purely on the basis of timeliness.

The suggestion has also been made that the sub judice convention, in and of itself, prevents the consideration of this question of privilege at this time.

House of Commons Procedure and Practice, second edition, at page 627 states:

The interpretation of this convention is left to the Speaker since no “rule” exists to prevent Parliament from discussing a matter which is sub judice.

As Speaker, I must endeavour to find a balance between the right of the House to debate a matter and the effect that this debate might have. This is particularly important given that the purpose of the sub judice convention is to ensure that judicial decisions can be made free of undue influence. While O’Brien and Bosc states on page 628, in reference to a March 22, 1983, ruling by Speaker Sauvé,

…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.

it also speaks of another aspect of this convention that is too critical to ignore when at page 100 it states:

The sub judice convention is important in the conduct of business in the House. It protects the rights of interested parties before the courts, and preserves and maintains the separation and mutual respect between the legislature and the judiciary. The convention ensures that a balance is created between the need for a separate, impartial judiciary and free speech.

Strictly speaking, in the case before us, while the sub judice convention does not prevent debate on the matter, the fact remains that the heart of this question of privilege is still before the courts, which have yet to make a finding. I believe that it would be prudent for the House to use caution in taking steps that could result in an investigatory process that would, in many ways, run parallel to the court proceedings, particularly given that the Minister of Justice and Attorney General of Canada is already a party to the court proceedings and would be a central figure in any consideration the House might give this matter.

Arguments over the timeliness of the intervention of the member for Winnipeg Centre and the extent of the restraints we might choose to impose on ourselves because of the sub judice convention are ancillary matters. It seems to me that the central element of this question of privilege asks the Speaker to determine if the government is meeting its obligations under the law, as set out in section 3 of the Canadian Bill of Rights and section 4.1 of the Department of Justice Act and their relevant regulations. The member for Mount Royal distilled this issue down to its fundamental element in stating:

What is rightly before this House, raised as a question of privilege, is whether minister has satisfied himself of the constitutional compliance of legislation.

This is the very matter the member for Winnipeg Centre has placed before me for my consideration in raising this question of privilege.

Numerous previous Speakers’ decisions point to a very clear practice for the Chair to follow in instances such as this. In a ruling given by Speaker Fraser, on April 9, 1991, which can be found at pages 19233 and 19234 of the House of Commons Debates, he said:

The Speaker has no role in interpreting matters of either a constitutional or legal nature.

In a ruling given by Speaker Jerome, on June 19, 1978, which can be found at page 6525 of the House of Commons Debates, he addressed a complaint that the government of the day may have acted illegally. He stated:

The hon. Member also alleges the Government acted illegally in the manner in which postal rates have been increased. Hon. Members will be aware that I have a duty to decide questions of order, not of law, and furthermore, I understand that this issue is now before the courts. In my opinion, therefore, it is an issue to be settled by the courts, and the Chair should not intervene.

House of Commons Procedure and Practice, second edition, at page 261, also provides valuable insight. It states:

...while Speakers must take the Constitution and statutes into account when preparing a ruling, numerous Speakers have explained that it is not up to the Speaker to rule on the “constitutionality” or “legality” of measures before the House.

In a ruling on a similar matter, Speaker Milliken, on April 12, 2005, at page 4953 of the Debates, did articulate the limited kinds of legal or constitutional matters the Chair could rule on.

He stated at that time:

What they may decide is whether the terms of a bill are in compliance with a prior resolution of this House, a ways and means motion, for example, or a royal recommendation in respect of a money bill, but beyond that, Speakers do not intervene in respect of the constitutionality or otherwise of provisions in the bills introduced in this House.

More recently, I have also been called upon to make rulings which effectively asked me to interpret the law. On October 24, 2011, at page 2405 of the Debates, I stated:

…it is important to delineate clearly between interpreting legal provisions of statutes—which is not within the purview of the Chair—and ensuring the soundness of the procedures and practices of the House when considering legislation—which, of course, is the role of the Chair.

Given the Chair's limited scope to consider legal matters, and based solely on what is within my purview to consider, I cannot comment on the adequacy of the approach taken by the government to fulfill its statutory obligations. I can therefore find no evidence that the member for Winnipeg Centre's privileges have been breached and cannot see how this rises to a matter of contempt. Accordingly, I cannot find a prima facie question of privilege.

I thank all members for their attention.

Privilege March 18th, 2013

I am now prepared to rule on the question of privilege raised on February 25, 2013, by the House leader of the official opposition about statements made by the Minister of Human Resources and Skills Development during oral questions on February 1, 2013.

I would like to thank the hon. House Leader of the Official Opposition for having raised this matter, as well as the Minister of Human Resources and Skills Development, the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons and the hon. member for Toronto Centre for their comments.

The opposition House leader charged that the Minister of Human Resources and Skills Development had deliberately misled the House when, in response to a question about the existence of quotas for Service Canada employees investigating employment insurance claims, she stated that “Departmental employees do not have individual quotas” and “...there are no individual quotas for employees of HRSDC who are looking at EI”. He stated that the minister's response is at odds with media reports describing the contents of employee performance agreements and that in his view it is clear that a quota program exists in her department, even if quotas are called objectives or targets.

In response, in a statement to the House on February 26, the minister countered that Service Canada does not have quotas for staff but, rather, performance targets. She stated:

There is a clear difference between a quota and a target, and that is simply that there are no negative consequences for staff who fail to meet targets.

Insisting that her statements had been neither misleading nor contradictory, she characterized the disagreement over terminology as a matter of debate.

Having carefully reviewed the matter, it appears to me that the Chair is being asked to examine and define certain terminology to determine if the minister has deliberately misled the House. However, I am limited to the role that the House allows the Speaker to play and to cast the Chair as the interpreter of the meaning of what was said is to go beyond that role.

On February 26, 2004, at page 1076 of the House of Commons Debates, Speaker Milliken pointed out that:

As hon. members know, it is not the Speaker's role to adjudicate on matters of fact. This is something on which the House itself can form an opinion during debate.

In another ruling, on January 31, 2008, which can be found at pages 2434 and 2435 of the Debates, Speaker Milliken also 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.

Our parliamentary practice sets a very high threshold for the Speaker to make a prima facie finding of privilege in cases like the one before us. This was acknowledged by the hon. opposition House leader in his intervention and I also referred to this threshold on May 7, 2012, at page 7650 of Debates, in ruling on a similar matter, when I stated:

...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 [it must be proven that] in making the statement, the member intended to mislead the House.

Furthermore, Speaker Milliken, in a ruling made on April 21, 2005, at page 5412 of the House of Commons Debates, reminded the House of a key element to consider when finding a prima facie instance of privilege. He said:

In the present case, I must determine whether the minister's responses in any way impeded members in the performance of their parliamentary duties and whether the remarks were intentionally misleading.

Taken together, these precedents demonstrate the demanding threshold established by our practice before the Chair can arrive at a prima facie finding of privilege. House of Commons Procedure and Practice, second edition, at page 510, summarizes the approach very well when it states:

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.

In the current situation, the Chair is faced with just such a disagreement over the facts, and the evidence presented to support the contention that the minister has deliberately misled the House falls short of the threshold required in cases of this kind.

Accordingly, given the precedents cited and our practice in circumstances of this kind, the Chair cannot find a prima facie question of privilege in this case.

I thank all members for their attention.

I understand the hon. Minister of Justice is rising to make further points to the question of privilege raised before the break.

Canadian Human Rights Act February 27th, 2013

There are nine motions standing on the notice paper for the report stage of the member for Esquimalt—Juan de Fuca's Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

While it is not usual for the Chair to provide reasons for the selection of report stage motions, in this case, I have decided to do so, as I have received a written submission from the hon. member for Esquimalt—Juan de Fuca outlining what he feels are exceptional circumstances surrounding the clause-by-clause consideration of the bill in committee.

As members know, consistent with the note to Standing Order 76.1(5), the Chair would not normally select motions that could have been presented in committee.

The hon. member who has submitted motions at report stage was also an active participant in the meeting scheduled for the clause-by-clause consideration of the bill by the Standing Committee on Justice and Human Rights. As such, it would appear that the amendments submitted by the member could have been proposed during the committee consideration of the bill. In the present case, however, there appear to be extenuating circumstances.

In his remarks, the member for Esquimalt—Juan de Fuca explained that during clause-by-clause consideration of the bill on December 6, 2012, the committee passed two amendments to the first clause of the text as well as the clause itself, as amended. He stated that the committee did not continue studying the bill.

Even the member for Esquimalt—Juan de Fuca's attempt to seek a 30-day extension for the consideration of Bill C-279 in committee was unsuccessful. As a result, clause-by-clause consideration of the bill did not proceed beyond the first clause, and pursuant to Standing Order 97.1, on December 10, 2012, the bill was deemed reported back to the House without amendment.

The Chair has had to rule on similar cases in the past, including one that came up on December 7, 2012—at page 13030 of the House of Commons Debates—regarding Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations). In that case, due to circumstances beyond its control, the committee was unable to complete its examination before the bill was deemed to have been reported without amendment pursuant to Standing Order 97.1. Accordingly, any amendments that had originally been submitted for the clause-by-clause examination of the bill in committee were submitted again at report stage. The Chair therefore selected those motions at report stage for debate, because it was clear that the members in question had attempted to propose their amendments in committee during the clause-by-clause examination of the bill.

In reviewing the sequence of events related to the bill now before the House, as well as the written submission from the member for Esquimalt—Juan de Fuca, I am satisfied that despite the efforts of the member to have his amendments considered by the committee, he was unable to do so before the bill was deemed reported back to the House.

Accordingly, Motions Nos. 1 to 9 have been selected for debate at report stage, and they will be grouped for debate and voted upon, according to the voting patterns available at the table.

I shall now propose Motions Nos. 1 to 9 to the House.

Privilege February 7th, 2013

I am now prepared to rule on the question of privilege raised on January 31, 2013, by the hon. member for Ottawa—Vanier regarding the procedures of the Department of Public Works and Government Services Canada with respect to providing information to members of Parliament.

I would like to thank the hon. member for Ottawa—Vanier for having raised this matter, as well as the hon. Leader of the Government in the House of Commons, the hon. opposition House leader and the hon. Parliamentary Secretary to the Leader of the Government in the House for their comments.

The hon. member for Ottawa—Vanier charged that government procedures requiring elected officials to seek public information through the minister’s office, while ordinary citizens could obtain the very same information directly from the department, impeded him from carrying out his duties as a member, particularly as this information was required for him to prepare to ask questions during question period. He worried that it was the government’s intention to make it difficult if not impossible for him to serve his constituents.

The member further stated that he believed this disparity in procedures was being applied in such a manner so as to create an inequality of access to information between government members and opposition members.

The parliamentary secretary expressed the view that constituency-related duties of a member are not covered by parliamentary privilege and suggested that there are other ways for the member to obtain the information that he is seeking, namely through written and oral questions.

Given that a member’s access to accurate and timely information is an essential cornerstone of our parliamentary system, it is perhaps not surprising that, in the past, other members have raised very similar concerns about access to departmental information.

Simply put, the question of privilege raised by the hon. member for Ottawa—Vanier raises the question of whether an alleged interference with a member’s ability to access departmental information in a timely and equitable manner constitutes a prima facie breach of privilege.

When the hon. member first raised this matter, he spoke of the need to have a, “level playing field of access to information for the benefit of the constituents we have been elected to represent”.

A careful review of various precedents on the issue of whether parliamentary privilege covers a member's constituency responsibilities reveals that Speakers have been quite categorical in stating that parliamentary privilege applies only in instances where members were participating in what is deemed to be a parliamentary proceeding. On October 9, 1997, at page 689 of Debates, Speaker Parent explained:

The Chair is mindful of the multiple responsibilities, duties and constituency related activities of all members and of the importance they play in the work of every member of Parliament. However, my role as your Speaker is to consider only those matters that affect the parliamentary work of members.

In the same ruling, Speaker Parent added, at page 688 of Debates that:

in order for a member to claim that his privileges have been breached or that a contempt has occurred, he or she must have been functioning as a member at the time of the alleged offence, that is, actually participating in a proceeding of Parliament. The activities of members in their constituencies do not appear to fall within the definition of a “proceeding in Parliament”.

In a ruling on a similar matter on February 4, 2008, which can be found at page 2540 of the Debates, Speaker Milliken came to the same conclusion. Other Speakers have likewise had occasion to clearly define what constitutes parliamentary work or a proceeding in Parliament.

The hon. member for Ottawa—Vanier did in fact attempt to make that very link to the proceedings in Parliament when he said that he needed the information in question as part of his work in preparing to ask a question during question period. It is the view of the Chair that this falls short of established definitions of parliamentary work. Again, Speaker Parent’s October 9, 1997, ruling is very instructive in this regard. He stated at page 688 of the Debates that:

After careful consideration of the precedents, I conclude that activities related to the seeking of information in order to prepare a question do not fall within the strict definition of what constitutes a “proceeding in Parliament” and, therefore, they are not protected by privilege.

For his part, the opposition House leader reminded the House of Speaker Bosley's ruling on May 15, 1985, at page 4769 of Debates, in which he declared:

I think it has been recognized many times in the House that a complaint about the actions or inactions of government Departments cannot constitute a question of parliamentary privilege.

This is not to say that the hon. member does not have a legitimate grievance or that the departmental response and process that he encountered does not warrant review, if only for its apparent inefficiency. The member may wish to approach the minister to see if a satisfactory accommodation is possible. In addition, as Speaker Milliken once suggested in a similar case, the member could also seek to have the appropriate standing committee inquire about the departmental procedures in place to assist members of Parliament in seeking information with a view to making recommendations for improvement.

However, as Speaker, I am obliged to assess situations of this kind within the strict parameters that flow from our precedents and usages as they relate to parliamentary privilege. It is beyond the purview of the Chair to intervene in departmental matters or to get involved in government processes, no matter how frustrating they may appear to be to the member.

Accordingly, in keeping with the precedents cited, the Chair cannot conclude that the member for Ottawa—Vanier has been impeded in the performance of his parliamentary duties and thus I cannot find that a prima facie breach of privilege has occurred.

I thank all members for their attention on this matter.

Interparliamentary Delegations February 4th, 2013

I have the honour to lay upon the table the report of the Canadian parliamentary delegation concerning its visit to Chile and Costa Rica from October 6 to October 13, 2012.