Bill C-18 (Historical)

Marketing Freedom for Grain Farmers Act

An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts

Part 1 of this enactment amends the Canadian Wheat Board Act to change the governance structure of the Canadian Wheat Board and to make other changes in preparation for the implementation of Parts 2 and 3. Part 2 replaces the Canadian Wheat Board Act with a new Act that continues the Canadian Wheat Board and charges it with the marketing of grain through voluntary pooling. Part 3 provides for the possible continuation of the Board under other federal legislation, while Part 4 provides for its winding up if no such continuation occurs. Finally, Part 5 provides for the repeal of the new Act enacted by Part 2.

Agriculture and Agri-Food

[Thomas Mulcair, NDP, Outremont, QC]

Mr. Speaker, how bad does it have to get for him to say yes?

Saskatchewan's farmers want answers also. The Conservative government dismantled the Canadian Wheat Board through Bill C-18.

Standing Committee on Finance

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I am grateful to the hon. House leader of the official opposition for raising this point of order yesterday, objecting to the unusual procedures that were accepted within the Standing Committee on Finance, in relation to the clause-by-clause treatment of Bill C-60, the 2013 omnibus budget bill.

Prior to his point of order, I was struggling with a dilemma: I was certain there was an effort to undermine my rights as an individual member of Parliament and yet there had been no formal challenge. I was not sure how to approach this, Mr. Speaker, and to put before you the ways in which I found that procedure unacceptable. I really very much appreciate that the official opposition saw fit to raise its concerns that those procedures and the procedures adopted--novel procedures, mind you--before the Standing Committee on Finance did not comport to parliamentary rules and practice and went beyond the mandate of the committee.

I agree with all the points made by the hon. House leader of the official opposition and by the member for Winnipeg North, on behalf of the Liberal Party.

Before getting down to the particulars of the current situation, I wish to review some fundamental principles related to the matter before you, Mr. Speaker.

In essence, what you are asked to adjudicate here is an effort by a powerful government party with the majority of seats in this place to eliminate what few rights exist to influence legislation in the hands of only eight members of Parliament belonging to two recognized national parties, myself, on behalf of the Green Party, and members here for the Bloc Québécois, plus two members currently sitting as independents.

Within this group, the government party's efforts are aimed only at the Green Party and the Bloc Québécois. We are the only members to have submitted amendments at report stage in the 41st Parliament.

The appropriate balance between the majority and the minority in proceedings of the House is, as Speaker Milliken noted, a fundamental issue.

Mr. Speaker, I am going to be providing the written copy of this presentation to you so that I will not have to read out loud all the citations.

The following passage is very apt. Although Speaker Milliken was dealing with a situation with a minority Parliament, the issues before him of balancing the rights of the minority and the majority are the same. I quote from Speaker Milliken's ruling of March 29, 2007:

At the present time, the chair occupants, like our counterparts in House committees, daily face the challenge of dealing with the pressures of a minority government, but neither the political realities of the moment nor the sheer force of numbers should force us to set aside the values inherent in the parliamentary conventions and procedures by which we govern our deliberations.

Continuing:

Unlike the situation faced by committee chairs, a Speaker's decision is not subject to appeal. All the more reason then for the Chair to exercise its awesome responsibility carefully and to ensure that the House does not, in the heat of the moment, veer dangerously off course.

The Speaker must remain ever mindful of the first principles of our great parliamentary tradition, principles best described by John George Bourinot, Clerk of this House from 1890 to 1902, who described these principles thus:

To protect the minority and restrain the improvidence and tyranny of the majority, to secure the transaction of public business in a decent and orderly manner, to enable every member to express his opinions within those limits necessary to preserve decorum and prevent an unnecessary waste of time, to give full opportunity for the consideration of every measure, and to prevent any legislative action being taken heedlessly and upon sudden impulse.

As I noted yesterday, in particular, in your ruling related to the member for Langley's question of privilege, you said:

...[an] unquestionable duty of the Speaker [is] to act as the guardian of the rights and privileges of members and of the House as an institution.

And you cited, with approval, these words from former speaker Fraser:

...we are a parliamentary democracy, not a so-called executive democracy, nor a so-called administrative democracy.

The last quote is from your ruling of December 12, 2012, which bears directly on the matter at hand. In that ruling, Mr. Speaker, you dealt with an objection raised by the hon. Leader of the Government in the House of Commons to, inter alia, my presentation of amendments at report stage. The hon. government House leader presented a proposal that all my amendments at report stage should be grouped and one motion selected as a “test motion”, and only if the test motion was adopted would any of the other amendments be put to the House.

Your ruling was clear, Mr. Speaker. You cited House of Commons Procedure and Practice at page 250, which states:

[I]t remains true that parliamentary procedure is intended to ensure that there is a balance between the government's need to get its business through the House, and the opposition's responsibility to debate that business without completely immobilizing the proceedings of the House.

And you added:

The underlying principles these citations express are the cornerstones of our parliamentary system. They enshrine the ancient democratic tradition of allowing the minority to voice its views and opinions in the public square and, in counterpoint, of allowing the majority to put its legislative program before Parliament and have it voted upon.

You ruled then, Mr. Speaker, that my amendments at report stage on Bill C-45 could stand and be put to a vote in the House. You also set out some circumstances that would provide a potential procedure to provide me and other members in my position with a fair and satisfactory alternative to amendments at report stage.

In my view, the government House leader is now attempting to do indirectly that which he could not do directly. It puts me in mind of the finding of Mr. Justice Dickson in that landmark Supreme Court case of Amax Potash, in which Mr. Dickson said:

To allow moneys collected under compulsion, pursuant to an ultra vires statute, to be retained would be tantamount to allowing the provincial Legislature to do indirectly what it could not do directly, and by covert means to impose illegal burdens.

I again underline that as the hon. House leader of the official opposition has put before us, the actions of the finance committee were ultra vires, and the whole effort here is to do indirectly what it could not do directly. I am speaking of the Conservative Party's efforts to suppress the rights of minority members.

It offends principles of fairness to use the superior clout and power of a majority government to crush the few procedures found within our rules and traditions to which I, as an individual member, have a right to recourse. It is clear that the effort being made by the finance committee on Bill C-60 is a continuation of the strategy-by-stealth of the government House leader's to foreclose the democratic rights of members, which was attempted in November of last year.

For the remainder of my argument, I would like to canvass two areas of facts that are relevant to the specifics of the question before you, Mr. Speaker. First, was the procedure adopted by the finance committee in conformity with your ruling of December 12, 2012? Second, have the amendments I have put forward in the 41st Parliament offended the rules by failing the tests of “repetition, frivolity, vexatiousness and unnecessary prolongation of report stage”?

Dealing with the second point first, I have moved amendments at report stage on the following bills, and I will state how many amendments per bill: Bill C-10, 36 amendments; Bill C-11, 11 amendments; Bill C-13, one amendment; Bill C-18, three amendments; Bill C-19, three amendments; Bill C-31, 23 amendments; Bill C-316, five amendments; Bill C-38, 320 amendments; Bill C-37, one amendment; Bill C-43, 21 amendments; and Bill C-45, 82 amendments.

What is immediately obvious is that the number of my amendments was directly proportionate to the legislation proposed by the government. Only on the two omnibus budget bills, Bill C-45 and Bill C-38, and the omnibus crime bill, Bill C-10, did I propose a relatively large number of amendments. There were many amendments, because the omnibus bills involved changes to multiple laws in a dramatic and transformative fashion. The amendments I proposed were all serious; none were frivolous. They were not of the kind, for example, put forward by the opposition of the day on the Nisga'a treaty, in which multiple amendments were mere changes of punctuation with the goal being slowing passage of the Nisga'a treaty.

The amendments I have put forward have even gained favourable commentary from some government members. On Bill C-31, the hon. Minister of Citizenship, Immigration and Multiculturalism said, “I appreciate the member's evident concern”, speaking of me as the member for Saanich—Gulf Islands, “and the fact that she takes the deliberative legislative process very seriously”.

On Bill C-11, the copyright modernization act, the hon. Minister of Canadian Heritage and Official Languages said, “I compliment her for her substantive approach to this legislation”.

On Bill C-43, the Minister of Citizenship, Immigration and Multiculturalism stated:

I commend the hon. member for Saanich—Gulf Islands for her constant due diligence. I know it is a particular challenge to effectively be an independent member and yet participate in an informed way in debates on virtually all bills in the House. We all admire her for that even if I do not agree with the substance of her intervention here.

In summary, the amendments I have put forward in the 41st Parliament have never been frivolous. Were they designed to slow passage? Not at all. Even on the day we began the marathon session of votes on the amendments to Bill C-38, I approached the Prime Minister personally and asked if any compromise were possible. I told him I would be at his disposal, that if one or two amendments might pass, perhaps the rest could be withdrawn, and that I was open to suggestion.

My goal throughout was serious and grounded in principle. My constituents care about these issues and these bills. I am working tirelessly in their interest. I have never engaged in preparing and presenting amendments for the sake of, as the government House leader has suggested, political games or delay for the sake of delay.

Having worked in the Mulroney government and in public policy work in Ottawa dealing with federal governments, federal ministers and federal laws since 1978, I have personal experience with what used to be the normal approach to legislating in the Parliament of Canada. This particular administration is the only one in our history to enforce rigid discipline on its members in legislative committees. It is the first administration in Canadian history to resist any changes in its legislative proposals from first reading to royal assent. Even the errors that are discovered prior to passage are protected from amendment until subsequent bills correct earlier drafting errors.

Worsening this abuse of democratic process, virtually every bill in the 41st Parliament has been subject to time allocation. If time allocation were not applied, in the normal round of debates, eventually members in my situation, who are seen as independent for my rights and privileges, although I sit here as a Green Party member, would be recognized and would participate in the debates. However, due to time allocation, there is never an opportunity to speak at second reading, report stage or third reading. With time allocation, there is never an opportunity for members in my position to make a speech unless another party cedes a speaking slot.

As a matter of practical reality, the only way to have a speaking opportunity in such time-constrained circumstances is to have amendments tabled at report stage. This approach of the current Conservative administration of rejecting any and all amendments, while simultaneously abbreviating debate opportunities, is a perversion of Westminster parliamentary tradition. It is a new and hyper-partisan approach to the legislative process.

As a member of Parliament, I believe it is my duty to work to resist this new, contemptuous approach to legislating. The ability to table amendments at report stage and to offer the entire House an opportunity to improve bills before third reading is even more critical when the legislative committee process has ceased to function as it did in all the time of all the speakers before you.

Now I turn to the question, Mr. Speaker, of how the finance committee applied the suggestions contained in your ruling of December 12, 2012. I note that the chair of the finance committee is never anything but personally fair, and I mean nothing personal against all members of the finance committee. I assume that this entire stratagem emerged elsewhere than from the members of the finance committee themselves.

I note that you suggested, Mr. Speaker, that there are “opportunities and mechanisms that are at the House's disposal to resolve these issues to the satisfaction of all members” in a “manner that would balance the rights of all members” and that “...members need only to remember that there are several precedents where independent members were made members of standing committees”. Those are all quotes from your ruling in December.

Finally, you suggested this:

Were a satisfactory mechanism found that would afford independent members an opportunity to move motions to move bills in committee, the Chair has no doubt that its report stage selection process would adapt to the new reality.

From these comments it is clear that your direction suggests that an effort might be made to engage members with rights of independents to enter into a discussion about how arrangements could be reached that would be, in fact, satisfactory. To be “to the satisfaction of all members”, your ruling implicitly requires that the suggested opportunities and mechanisms be discussed and accepted by all concerned. Further, you suggested that temporary membership was possible and that members should be able to “move motions”.

None of that occurred. I am attaching a written copy of all the correspondence between me and the chair of the Standing Committee on Finance, which I will provide to the table. As you will see, there was no discussion or offer of co-operation. The “invitation” contained in a letter of May 7, 2013 left no room for discussion. The attached motion of the committee was supported only by the Conservative members of the finance committee but not by the official opposition or the Liberal Party members.

The letter, and particularly the motion itself, had the tone of a unilateral ultimatum. My response was to ask for temporary committee membership for the duration of clause-by-clause review. This request was rejected in the letter of May 24, 2013.

As the various sections of Bill C-60 had been distributed among several committees, I attempted to attend all the hearings relative to my amendments. However, committees were meeting at the same time in different locations throughout the parliamentary precinct making it impossible to get to each one of them. I did attend meetings of the industry, finance and the foreign affairs committees prior to clause-by-clause study. I asked for permission to ask witnesses questions and was denied in the finance and foreign affairs committees. I was allowed a three-minute opportunity to pose questions in the industry committee. To be blunt, my opportunities were not close to equivalent to the members of those committees.

On Monday, May 27, 2013 as requested by the finance committee, I complied with the committee and attempted to co-operate. I submitted my amendments and attended clause-by-clause study throughout the meeting of the committee on Tuesday, May 28. I asked for time to present my amendments. There were 11 in total. I was given half as much time as my colleague from the Bloc Québécois. I was allowed one minute per amendment. He was allowed two minutes per amendment. I have attached copies of the Hansard from all of these discussions to abbreviate the recitation of the facts.

I prefaced my presentation of amendments with a statement that I had not asked for this opportunity nor invitation and that while I was attempting to co-operate, it was without prejudice to my rights to submit amendments at report stage. Each time I was given the floor for 60 seconds, I repeated that my participation was without prejudice to my rights to present amendments at report stage, when I had the right to move my own amendments, speak to my own amendments, and answer questions about my amendments. At report stage, I have the right to vote on my amendments.

I also supported the point made by the hon. member for Parkdale—High Park that inviting independent members to committee, in her words, “does not conform with parliamentary procedure in that only the House of Commons can appoint committee members”.

I noted that I did not have an equal opportunity to present my amendments. This observation was compounded as we went through clause-by-clause study.

On two occasions, members of the committee suggested amendments to my amendments. I was not allowed to comment on those suggestions. On one occasion, a member of the government benches disagreed with a point I made, but I was not allowed to reply. On another occasion, the NDP members misunderstood the impact of my amendment, but I was not allowed to explain. I was not allowed to move my amendments. The motions were deemed moved. I was not allowed to vote on my amendments. As noted, I was not allowed even the ability to participate in discussions about my amendments.

There is no way the word “satisfactory” can be so twisted of meaning as to apply to the set of circumstances to which I was required to submit. It is a principle of fairness and natural justice that an opportunity that cannot be used is no opportunity at all.

When one considers the circumstances in which speakers have ruled that members did not have an adequate opportunity to submit their amendments, it is clear that this imposed process before the Standing Committee on Finance falls far short of the mark.

For example, in 2001, Speaker Milliken ruled that where a member was on two committees and had difficulty getting to the meeting, he could move amendments at report stage. Speaker Milliken wrote that:

...because...the member maintains that he sits on two committees, both of which were seized with bills at the same time, and therefore had difficulty in moving his amendments, the Chair will give the benefit of the doubt to the member on this occasion.

In a situation where a member of a recognized parliamentary party attended the clause-by-clause consideration at the committee but was not an official member of the committee, Speaker Milliken allowed that member's amendments to be presented at report stage. He noted:

Of course, the Chair recognizes that our parliamentary system is party driven and the positions of the parties are brought forward to committees through its officially designated members. The Chair also recognizes that some members may want to act on their own.

Underscoring this, what an example: a member of a recognized party with rights to participate in standing committees chose to be in the meetings, in clause-by-clause study, and could have handed that member's amendments to another member of his party and ask that they be submitted, but the Speaker of the House supported the right of that member to amendments at report stage because he was not a committee member. I was a long, long way from the rights of that member of a recognized political party sitting in that committee back in 2003 when Speaker Milliken allowed that member's amendments at report stage.

The right of a member to actually move the amendments at committee cannot be perverted through the expedient measure, imposed by a majority party, of demanding all amendments of an independent member be submitted, denying that member the right to move the amendment, speak to the amendment, other than in an inadequate perfunctory fashion, debate or defend the amendment, giving that member no opportunity to speak to other amendments and denying the member any chance to vote on his or her motion.

There may well be some way to accommodate members of Parliament in my position, but clearly, this experiment on Bill C-60 at clause-by-clause consideration in the finance committee was not acceptable. To accept it now, and disallow rights of members of Parliament in the position of independents to submit amendments at report stage, will be to create a precedent that fundamentally abuses our foundational principles of Westminster parliamentary democracy.

Mr. Speaker, I urge you to find in favour of the point of order put forward by the hon. House leader for the official opposition and to set aside the treatment of me and the member from the Bloc Québécois and allow us to submit amendments, move amendments, debate our amendments and vote on them on Bill C-60 at report stage.

Department of Justice

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Speaker, I rise to respond to the question of privilege that was raised shortly before the recent constituency week. The member referred to allegations made by an official in the Department of Justice, which are currently the subject of litigation before the Federal Court. He has said that if those allegations are true, then the House was misled. I firmly reject that insinuation.

In the government House leader's remarks made in immediate response, he noted three procedural objections from the outset to this question of privilege: first, that it was not brought at the earliest opportunity; second, that it pertained to a question of law; and third, that the sub judice convention ought to be considered.

As noted by my hon. colleague, the plaintiff filed a statement of claim in the Federal Court on December 14, 2012. A motion in relation to this judicial proceeding was heard in Federal Court on January 15, 2013, leading to a series of newspaper articles and other stories about this case in the days following. However, no question of privilege was raised when the House reconvened on January 28, 2013.

When I appeared before the Standing Committee on Justice and Human Rights on February 6, in relation to Bill S-9, the hon. member for Gatineau questioned me about section 4.1. The hon. member for Winnipeg Centre had yet to bring forward his question of privilege, despite his colleague, the NDP's justice critic, being prepared to participate in a thorough discussion on the subject.

Moreover, I understand that the reporting requirement of section 4.1 has come up in no fewer than five different debates on the floor of the House since the start of 2013. Suffice to say, the hon. member could have raised his question much sooner than March 6, 2013.

The second matter raised by the government House leader was that the issue before us is a question of law.

Citation 168(5) of Beauchesne's Parliamentary Rules and Forms, sixth edition, advises that the Speaker “will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or question of privilege". This is a long-settled proposition.

The same statement is declared at page 180 of Sir Jean Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada. That book was published in 1916. The principle recited can be traced through many Speakers' rulings.

Mr. Speaker Milliken ruled on December 12, 2012, at page 2600 of the Debates, on a dispute about whether certain content in the Public Accounts accorded with the requirements of the Financial Administration Act. On this, your predecessor, Mr. Speaker, said:

It is not of course for the Speaker to decide if the agency is acting in compliance with the law. As I have had occasion to mention in several recent rulings, it is a long-accepted principle that the Speaker does not pronounce on points of law.

There is clearly a difference of opinion...concerning interpretation of the legalities flowing from the facts of this case. That is a matter for debate and a variety of different opportunities are available by which the matter can be raised in this chamber or in committee. There is no procedural issue here and so I need not elaborate on that further.

Mr. Speaker Fraser's ruling on October 9, 1990, page 13620 of the Debates lends itself well to the allegations here. He said:

—it is not for the Speaker of the House to rule on constitutional matters. It is not for the Speaker of the House to try to interpret at any given time different legal opinions that may be expressed across the country.

Deputy Speaker Lucien Lamoureux, as he then was, declined to answer a question of whether a bill came within the constitutional jurisdiction of the Parliament in a ruling on October 25, 1963, at page 488 of the Journals. The authorities he quoted included even an 1864 decision of Mr. Speaker Wallbridge of the Legislative Assembly of the Province of Canada.

Far more recently, though, is a ruling which you, Mr. Speaker, delivered on October 24, 2011, starting at page 2404 of the Debates, respecting C-18, the Marketing Freedom for Grain Farmers Act. You summarized the position in which you found yourself then and, I would submit, where you are now:

—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.

The final point noted by the government House leader is that the allegations referred to by the member for Winnipeg Centre are before the courts. Until the matter is resolved, this House should exercise its usual restraint and avoid prejudging or prejudicing the outcome of the case in which I, as Attorney General of Canada, am a party. Nonetheless, I am compelled to respond to the case argued.

In the present circumstances, finding a prima facie case of privilege would require that there be some evidence that the House and its members have been impeded in carrying out their parliamentary duties. Despite the hon. member's allegations, he admitted in his submission that he has “no evidence to suggest that the incumbent Minister of Justice nor any of his predecessors have deliberately provided inaccurate information to the House, even implicitly”.

Page 141 of House of Commons Procedure and Practice, second edition, observes, on questions of 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.

To accomplish this, the member for Winnipeg Centre would seek to have the Speaker rely upon the unproven and untested allegations made by a plaintiff in a court proceeding. I would respectfully submit that if this is to become the threshold for setting aside the business of the House sponsored by members, whether they be ministers or private members, we could easily paralyze the business of Parliament by taking up any number of litigants' unproven and untested statements of claim. Therefore, I discourage you, Mr. Speaker, from making a finding of a prima facie case of privilege on that basis.

However, it is incumbent upon me to explain why the member for Winnipeg Centre has not made such a case. While I exercise my statutory responsibilities with the assistance of officials, the duty to examine government legislation under the Department of Justice Act and the Canadian Bill of Rights is mine, as Minister of Justice. It is a duty that I, of course, take very seriously. As I will explain, 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.

As to the manner in which I exercise that responsibility, my statutory duty is owed to the House of Commons. Our proceedings make this clear on a daily basis. As Minister of Justice, I regularly answer questions in the House and appear before parliamentary committees studying government legislation. Members can and do ask me questions about the constitutionality of government bills. For example, the hon. member for Mount Royal, a former Attorney General, has, on at least three separate occasions, asked a series of detailed written questions. However, my officials and I are legal advisers to the Crown and not to the House of Commons. As a minister of the Crown, I appear in this House and in committees to explain the government's legal position on the legislation it has introduced, but I am not the House's exclusive source of legal information. Members can and often do receive legal opinions from the law clerk and parliamentary counsel as well as the views or submissions of law professors and other members of the bar who appear before committees to assist them in evaluating the legislation being considered. A similar process unfolds in the other place.

My approach to the constitutionality of government legislation is consistent with that of my predecessors and is a matter of public record. Under the Department of Justice Act, as the Minister of Justice, I am the official legal adviser to the Governor General and the legal member of the Queen's Privy Council for Canada. One of my responsibilities is to examine government bills presented to the House of Commons and to ascertain whether they are inconsistent with the purposes of the Canadian Charter of Rights and Freedoms and to report any such inconsistency to the House of Commons. The Canadian Bill of Rights requires me to conduct a similar review for inconsistency.

The notion that Parliament has somehow been misled reflects a misunderstanding of how the system actually works. Proposed government legislation is reviewed for charter and other legal risks throughout the policy and legislative development processes. The process of examining government legislation for compliance is dynamic and ongoing. Section 4.1 is only one part of a broader process that involves three distinct components: advisory, certification and reporting.

The advisory component takes places throughout the policy development process, up to and including the introduction of legislation. This typically begins with the development of the policy proposal by government departments. It continues as the proposal is refined, as options are developed and put before ministers and throughout the legislative drafting process.

Senior officials, up to and including the deputy minister of justice, other deputy ministers and where necessary, other ministers and I are briefed about policy proposals where legal risks have been identified. The risks that are highlighted are not limited to situations where the proposed legislation is inconsistent with the charter. It is a broader analysis of risks along a spectrum, from low to high risk for charter inconsistency.

Certification of legislation is a separate process that takes place after government bills have been introduced in the House of Commons. It is a formal step whereby the department's chief legislative counsel confirms, that is certifies, that the requisite review of legislation for inconsistency has taken place. Certification takes place for all government bills.

Certification should not be confused with the reporting obligation in section 4.1 of the Department of Justice Act and section 3 of the Canadian Bill of Rights. Certification is a task for government officials and takes place for all government bills. By contrast, the reporting obligation belongs to the Minister of Justice alone and would be triggered only if I, as the minister, formed the opinion that the government bill in question was, at the time of its introduction, inconsistent with the charter or the Canadian Bill of Rights. Section 4.1 and section 3 are quite clear in that regard. They require the minister to ascertain whether there is an inconsistency. This accords with the long-standing approach I and my predecessors have taken in that the minister makes such an ascertainment only when there is no credible argument to support the proposed measure.

A credible argument is one that is reasonable, bona fide and capable of being raised before, and accepted by, the court. This credible argument threshold is qualitative in nature, despite the allegations quoted by the member for Winnipeg Centre. It is not based on a predetermined numerical threshold. Section 4.1 uses very precise language. It does not require that there be disclosure any time there is a risk, only that I ascertain that there is inconsistency.

I must stress that the approach I have described is not new. It originates from the earliest days following the enactment of section 4.1.

Several of my predecessors have answered questions on this duty in the House or before our committees or those of the other place. For example, that could be found when the hon. Pierre Blais, currently Chief Justice of the Federal Court of Appeal, was questioned about his responsibilities at the Standing Senate Committee on Legal and Constitutional Affairs in June 1993. Similarly, the hon. member for Mount Royal answered questions on the topic before the same Senate committee in November 2005. My immediate predecessor, now the Minister of Public Safety, fielded related questions from the Standing Senate Committee on Legal and Constitutional Affairs during its study of Bill C-2, the Federal Accountability Act, on June 29, 2006. I too have had the pleasure of explaining the government's legal position with respect to government bills such as a question in the House on November 23, 2007 about Bill C-2, the tackling violent crime act, or during my recent committee appearance on Bill S-9, the nuclear terrorism act, which I described earlier.

I could go on and quote from those exchanges, but I think the point is clear that this is nothing new and that Parliament possesses, and has long exercised, its ability to query and probe the constitutionality of bills.

Of course, we must remember that constitutional law constantly evolves. The only certainty is that someone will inevitably litigate constitutional questions against the government.

This explanation should put to rest the concerns of the member for Winnipeg Centre, and indeed, all hon. members.

Furthermore, under our constitutional system, all branches of government, Parliament, the executive and the courts have a responsibility to ensure that charter rights are respected. The system of charter review put in place under section 4.1 ensures that each branch performs its appropriate role. Within the executive branch, proposed legislative initiatives are reviewed, taking into consideration any charter risks that have been identified through the advisory process and recertification that the necessary review for inconsistency has taken place upon introduction of a government bill in the House of Commons. It is then for the houses of Parliament to debate the proposed law, including its constitutional implications, and to determine whether or not it will pass and become law.

The approach to reporting requirements in section 4.1 or section 3, as the case may be, and the underlying review process must reflect the role of all institutional actors, including Parliament, to consider, debate, weigh and balance charter interests in light of public policy objectives. Parliamentarians have their own responsibilities in relation to the charter.

In summary, I have great respect for the work of parliamentarians and for the role of this House in debating government legislation. I have explained how I approach my responsibilities under the Department of Justice Act. I take into account a variety of legal opinions and perspectives, which can differ, and then I make the decision.

There is no mystery here. Like all of my predecessors, the approach I apply under section 4.1 is robust and meaningful. Even after I make the decision that there is no inconsistency between the proposed legislation and the charter, it remains open for parliamentarians to debate the proposed legislation, including any charter aspects. If the legislation is passed, it can be challenged before the courts. This process has served governments and parliaments well.

In conclusion, Mr. Speaker, you have several procedural grounds on which you could reject this question of privilege, or you can accept the evidence from me, as a member of the House of Commons. The hon. member's claims, in my opinion, can be dismissed outright.

Finally, I understand that the hon. member for Mount Royal may be making an intervention again on this question of privilege. I would like to reserve the right for myself or a colleague to respond in due course should any new issues not previously canvassed arise.

Legislation to Reorganize the Canadian Wheat Board--Speaker's Ruling

[The Speaker, Andrew Scheer]

I am now prepared to rule on the question of privilege raised on December 8, 2011, by the member for Guelph in relation to proceedings on Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts.

I would like to thank the member for having raised this matter, as well as the Leader of the Government in the House of Commons and the House Leader of the Official Opposition for their interventions.

In raising his concerns, the member for Guelph argued that the Federal Court finding on the actions of the Minister of Agriculture and Agri-Food and Minister for the Canadian Wheat Board in relation to Bill C-18 supported his claim that the manner in which the government managed proceedings on the bill violated his privileges as well as those of other members, and rendered the bill and therefore the House's consideration of it, illegal. Given the court's finding, he asked me as Speaker to reconsider the basis for my previous ruling of October 24, 2011 on this same matter, in which I reminded the House that it is the responsibility of the courts and not the Speaker to rule on legal matters.

The Leader of the Government in the House of Commons stated that the decision of the court on this matter in no way limited Parliament's right and ability to legislate, and reminded the House of the undisputed principle that a previous Parliament cannot fetter a future one. Furthermore, he claimed that the House, having already made a decision on this bill, was no longer seized of this matter and, thus, had no jurisdiction to deal with it.

The member for Guelph argues that the decision rendered by the Federal Court has a bearing on the question of the correctness of our proceedings in relation to Bill C-18. He maintains that, despite the Chair having already answered the question in previous rulings, the court decision somehow creates new circumstances.

It is the view of the Chair that the fundamental issue remains unaltered; namely, that the member for Guelph is essentially still asking the Speaker to rule on a matter of law. This, as I have gone to great lengths to explain previously, is something the Speaker cannot do.

In my ruling of October 24, 2011, on page 2405 of the House of Commons Debates, I commented on a long-standing principle that has guided me and my predecessors on the Chair's role in interpreting constitutional and legal matters. 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.

At the same time, I reminded the House of Speaker Fraser's ruling of April 9, 1991, at pages 19233 and 19234 of the Debates, in which he declared that the Chair must avoid interpreting, even indirectly, the Constitution or a statute.

On April 12, 2005, at page 4953 of the House of Commons Debates, Speaker Milliken stated much the same thing when asked to rule on the admissibility of a bill that would have required him to interpret the constitutionality of a clause of proposed legislation. He stated at the time:

...the Speaker does not make rulings on matters of law; on parliamentary law perhaps, but not on the law of the Constitution or on other laws that affect us. The question of the interpretation of the section of the bill is one that would be determined by a court if the bill in fact becomes law. At the moment, it is a bill before Parliament and Speakers in the past have not ruled on the constitutionality or otherwise of clauses in a bill....Rulings of courts may chuck out some of the clauses that are adopted by this House in a bill, but that happens after the House has passed it and the Senate has passed it and it has received royal assent, because even the courts have no jurisdiction in the matter before.

In the same ruling, Speaker Milliken spelled out for the House the very limited kinds of legal and constitutional matters that Speakers may rule on when he stated:

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.

That the Federal Court granted a breach declaration regarding the actions of the minister with respect to the bill does not fundamentally change either the nature of the question being raised or the role of the Speaker in answering it. To find that the member was obstructed or interfered with in the performance of his duties because he participated in the legislative proceedings on a bill that was allegedly improperly before the House would require me to rule on the legality of the bill and this is simply outside the bounds of what can be considered by the Speaker.

Instead, just as I did in my ruling of October 24, 2011 on this same matter, I must again confine myself to the procedural aspects of the question. Now, as then, I can find no evidence to substantiate the member's claim that there has been an interference with members' ability to fulfill their parliamentary duties. As such, I cannot find that there is a prima facie question of privilege.

I thank all members for their attention.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, thank you for the opportunity to give my last Thursday statement of 2011. The fall has been a productive, hard-working and orderly session. It has been capped by results that we have seen in the House during delivering results month since we returned from the Remembrance Day constituency week.

Of particular note, this fall the House passed Bill C-13, the keeping Canada's economy and jobs growing act; Bill C-20, the fair representation act; Bill C-18, the marketing freedom for grain farmers act; and Bill C-10, the safe streets and communities act.

Other things were also accomplished, from the appointment of two officers of Parliament to the passing at second reading of Bill C-26, the Citizen's Arrest and Self-defence Act. I would like to thank the opposition parties who made these accomplishments possible. Nevertheless, the House has a lot of work to do when it returns in 2012.

The things I am looking forward to in 2012 include, after 48 speeches so far, returning to Bill C-19, the ending the long-gun registry act; after 75 speeches so far, continuing debate on second reading of Bill C-11, the copyright modernization act; after 73 speeches so far, continuing debating the opposition motion to block Bill C-4, the preventing human smugglers from abusing Canada's immigration system act from proceeding to committee; and, after 47 speeches so far, continuing debate on second reading of Bill C-7, the Senate reform act.

This winter, the government's priority will continue to be economic growth and job creation. We will thus continue to move forward with our economic agenda by debating legislative measures such as Bill C-23 on the implementation of a Canada-Jordan free trade agreement; Bill C-24 on the implementation of a Canada-Panama free trade agreement; Bill C-25, which is designed to give Canadians another way to plan for retirement through pooled registered pension plans; and Bill C-28 on the appointment of a financial literacy leader.

Needless to say, I am looking forward to the 2012 budget, the next phase of Canada's economic recovery, from the Minister of Finance, and I am looking forward to what I am sure it will deliver for the Canadian economy. This will be the cornerstone of the upcoming session.

With respect to the precise business of the House for the week of January 30, 2012, I will advise my counterparts in the usual fashion in advance of the House returning.

In closing, Mr. Speaker, please let me wish you, my fellow house leaders, all hon. members and our table officers and support staff a very merry Christmas.

In particular, I want to thank the pages, many of whom, as we know, spent their first significant amount of time away from home with us this fall. I wish them a pleasant time back home with family over Christmas. Perhaps we have provided some good stories for them to tell around the dinner table.

Merry Christmas, happy new year and all the best for the break. Here is to a productive, orderly and hard-working 2012.

Merry Christmas and happy new year. May the members of the House rest up in preparation for the hard work to come in a productive and orderly 2012.

Canadian Wheat Board

[Gerry Ritz, Conservative, Minister of Agriculture and Agri-Food and Minister for the Canadian Wheat Board]

Mr. Speaker, the new year will be bright for western Canadian farmers. We are continuing to proceed with Bill C-18. We will move it through, and it will receive royal assent.

Farmers in western Canada, at the time of royal assent, will be able to start forward-contracting their crop. It is their property, and they will be able to move it. We will not allow the leader of the third party and his elves to steal Christmas and that great new year's present for the farmers of western of Canada.

[Gerry Ritz, Conservative, Minister of Agriculture and Agri-Food and Minister for the Canadian Wheat Board]

Mr. Speaker, I think we will rename this bill CF-35 to get it through even faster.

Let me quote the member for Winnipeg Centre, who said, “Parliament has the right to overturn legislation put in place by previous governments. Then he goes on to say, “I don't want every piece of legislation to have a poison pill clause like this in it. I don't know of any other legislation that has such a clause”.

Neither do we. That is why we are moving forward with Bill C-18, to ensure that farmers in western Canada have the clarity and certainty they need on next year's crop and every crop after that.

[Pat Martin, NDP, Winnipeg Centre, MB]

CF-18 is the other insult to the Prairies, Mr. Speaker.

The CWB may just, in fact, win this court injunction because Bill C-18 offends the rule of law.

Now, if the minister wants to stop chaos and pandemonium, and uncertainty and instability in the grain industry, why does he not just grant the vote for the future of the Wheat Board to prairie farmers, as they are guaranteed in legislation, and avoid all this mess on the Prairies?

[Wayne Easter, Liberal, Malpeque, PE]

Madam Speaker, the parliamentary secretary certainly misses the point. If there is one thing that will be certain as a result of the government's action in destroying the Canadian Wheat Board, it will be uncertainty in the grain markets. That will be the bottom line.

The key point is that we are asking the government to abide by the rule of law, as the Federal Court has asked it to do. We are asking the government to respect farmers' opinion and allow farmers the right to have their say on their marketing institution. The Conservatives have denied them that right.

However, the Conservatives went very far and even managed to intimidate their own bureaucrats to the point that the deputy minister of agriculture confirmed at the Senate committee on Bill C-18 that rather than provide the minister with objective advice he stated, “I was asked to indicate the studies that support that”, meaning the open market option, “and I have done so”. There were other objective studies. He failed to release them. The government has even intimidated the bureaucracy.

Why does the government not abide by the rule of law?

[Wayne Easter, Liberal, Malpeque, PE]

Madam Speaker, in my question on November 4, I asked the minister to explain his act of misleading the committee and why he deliberately refused to meet the board of directors of the Canadian Wheat Board.

Knowing this minister's tactics, I should not have been surprised by the minister's deceptive and misleading response when he claimed that the board refused to meet with him. That, as the board has since confirmed, was not true.

In fact, every action the government has taken in its fevered efforts to destroy the Canadian Wheat Board was summed up in the Federal Court decision of December 7 as being “an affront to the rule of law”.

The minister claims he represents farmers, and cites the Western Canadian Wheat Growers Association and Western Barley Growers Association on every occasion. These organizations, by their own admission, have gone from 3,130 members to about 730 members, not all of whom reside in western Canada.

Clearly this is a government that believes freedom can be given by destroying democracy. This is a government that has brought forward legislation based upon deception and lies. It is a government that has used threats, intimidation, firing and gag orders on the board. This is a Minister of Agriculture and Agri-Food who has the gall to stand in front of western farmers and tell them that he would do nothing until farmers decided to make a change to the Canadian Wheat Board.

Farmers, the minister said, “are absolutely right to believe in democracy. I do, too.” He again broke his word, because he never held the vote under section 47.1 of the Canadian Wheat Board Act that would have allowed farmers to have that voice. In fact, the Federal Court has said, as I indicated a moment ago, that it was “an affront to the rule of law”.

This is a government whose parliamentary secretary claimed in this House that the Canadian Wheat Board of 1943 was the same as the CWB today. This deliberately ignored the fact that legislation was brought forward in 1997 which allowed an elected board of farm directors to control and manage the board.

This is a Minister of Agriculture and Agri-Food who will now deliberately expropriate the property of farmers and will appoint five of his cronies, his hacks or those he wants to pay off, to direct the Wheat Board. This will change the Canadian Wheat Board from being run by an elected board of farm directors to being run by a few hacks controlled by the Government of Canada.

To whom do these political appointees answer? Where do they get their direction and marching orders? From the Minister of Agriculture and Agri-Food's office itself.

This is a minister who just increased the contingency fund to $200 million, a fund that he and his hard cronies can manipulate as they wish, a point confirmed by the deputy minister of agriculture himself.

I will conclude by saying that when faced with a government that is guided by the same moral compass as a bully, as a thug, it should come as no surprise that extraordinary measures are required.

The Prime Minister is fond of declaring that he would like Canada to reflect certain provisions of the BNA Act, in terms of the federal relationship to other levels of government. Section 55 of that act, long in disuse but still contained in the Constitution document, provides the Governor General with the option of withholding or reserving assent to legislation.

Bill C-18 is premised on a violation of law. Its very genesis is based on an affront to the rule of law. Perhaps the Governor General should give consideration to using section 55 to deny this—

[David Anderson, Conservative, Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board]

Mr. Speaker, we are in agreement with western Canadian farmers that they want certainty as soon as possible. They want certainty on January 1, 2012. They want to know that they can go out and start to book their contracts for next year and they want to know that they can deal with the people who they want to deal with. They want freedom and we will give them that.

The hearings are proceeding through the Senate committee. The bill will go back to the Senate. We look forward to the passing of Bill C-18 and we look forward to western Canadian farmers finally having the same freedoms that everyone else in Canada already has.

Government of Canada

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Mr. Speaker, last spring Canadians elected a government that is listening and keeping its promises.

Canadians told me they wanted a government that would make keeping their children and communities safe a priority. As promised, within the first 100 sitting days of Parliament, we will pass Bill C-10.

Farmers in my riding told me that they wanted the freedom to market their own wheat and barley. We are delivering by passing Bill C-18.

I regularly hear how wasteful the long gun registry is. I am very pleased that the government is passing Bill C-19 to end this discrimination against law-abiding citizens.

People across Canada have also told me of the need for increased transparency and accountability for first nations governance. I am proud that the government has introduced Bill C-27.

We have listened and we have acted.

Legislation to Reorganize the Canadian Wheat Board

[Frank Valeriote, Liberal, Guelph, ON]

Mr. Speaker, this is in response to the comments by the government House leader.

First, Justice Campbell did not comment on the validity of Bill C-18 because he was not asked to. He made no comment one way or the other. Therefore, Mr. Speaker, you should not give any weight to the suggestions by the government House leader on that point.

Second, no injunction was granted because no injunction was sought. Mr. Speaker, you can give no weight to that comment by the member opposite.

Third, and this is the point I made very briefly, the government has an obligation to follow the law if it is changing the law, just as surely as it has an obligation to follow the rules of this House and all procedures associated with it when we are making new laws.

Those are my three points and I thank you again for your indulgence, Mr. Speaker.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I want to correct the government House leader, because his government obviously does not understand the nature of the decision that was made, and quite frankly, the nature of the law on this point.

The Conservatives are absolutely right that a parliament cannot pass legislation that would prevent a subsequent government administration from passing laws to change that law or do away with it completely, but it can restrict subsequent parliaments as to how they do it. That is exactly what was done in the Canadian Wheat Board Act, and that is exactly what was found as being proper by Justice Campbell of the Federal Court in his decision yesterday.

The position the Conservatives are taking obviously shows a significant lack of knowledge and understanding of that legislative constitutional principle. I hear from the government House leader that he thinks it is stupid. It may in fact be stupid, but it is the law of the land, and the Conservatives do not get the opportunity to unilaterally break the law of the land. I think this actually would require a constitutional change in order for that principle to be altered.

Mr. Speaker, I am, however, cognizant of his argument that he makes with regard to your status as Speaker to rule on this matter. Obviously the statute is no longer here; Bill C-18 has passed and has gone on to the other house, and so it should lie in the hands of the Speaker there. I have to admit ignorance in this regard in that I do not understand the rules of the other place. I am not sure anybody understands its rules, quite frankly, but I admit that I do not. Whether there is jurisdiction in the Speaker in that place, I simply cannot say.

At first blush one might wonder what jurisdiction and authority you have to rule on this, since this House has passed the bill. I want to say at this point, Mr. Speaker, and I am reserving my right to come back to you tomorrow if I can find more on this, that your jurisdiction may lie in the fact of being able to say to the minister of the day, “Your conduct has in fact breached our privilege. You should have known the law of the land. Every government is supposed to know that. Either out of incompetence that you did not know or out of refusal to acknowledge the law of the land, you went ahead, placed the bill before the House, voted it through the House by your majority government, and that has now clearly been determined by the courts of this land to have been improper conduct, to be illegal conduct on your part”.

Mr. Speaker, your order then would be, because you do have control over that member even though he is a minister, to in effect cease and desist, to find the prima facie case. I think anybody can argue clearly that our privileges have been breached. Our reputations as members of Parliament have been breached very clearly. We are a laughing stock in the general public. The bill went through this House clearly by that decision, and I will not give the government any hope at all that it will be successful on appeal. The government will lose that appeal, almost certainly.

It is a simple finding of fact. The bill reads this way. The existing law reads this way. It fits into the constitutional framework of our country. It is not a substantive issue of law. It is simply a form, how this law is to be changed. The Conservatives are bound by that. Parliament is bound by that. Our reputation has therefore been damaged, the reputation of all of us.

I will leave it at that point, but I would reserve the right to come back to you one more time, at least by tomorrow, if I can find more on it, Mr. Speaker.

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I should start out by correcting the hon. member for Guelph.

He misrepresented from the outset what Bill C-18 is all about. He said it was about dismantling the Wheat Board; it is clearly not about doing that. It is in fact about maintaining the Wheat Board in existence while providing to western Canadian farmers the same choice that farmers in his part of Ontario have, which is to choose whether to market to the Wheat Board or to other entities. I think it should be clear that this is what the bill is about. His representation is inaccurate.

I am a little puzzled by what he is seeking to do here. You have already ruled on this matter. I see no reasonable challenge to that ruling here.

In terms of the remedy he is seeking, he is asking that you, Mr. Speaker, request the Leader of the Government in the Senate to suspend consideration of this matter. I suppose this House could, if it chose to, pass a resolution making such a request if it saw fit to do so. I do not think it is your place, as Speaker, to seek to apply your jurisdiction as Speaker into that other place and pretend to tell it how its affairs should be managed. That would be inappropriate for you in your role as Speaker and in your jurisdiction as Speaker.

In fact, what is truly fascinating is that this entire point of order is on a matter that is no longer before us. It is a matter on which we are functus, if you will. It is a matter on which this House has already made its decision, made its determination, and the jurisdiction with it lies right now entirely with the Senate. Should it seek changes and send the bill back to us, we will once again have a functional role, but at this point in time there is nothing before us to decide. As a House, we have no jurisdiction to deal with this matter at all.

In terms of the core questions at stake, the fundamental constitutional question that he is seeking to challenge is that of the ability of this Parliament to legislate and that we cannot change laws. He is saying that if a law purports to pose obligations in the future for the changing of a law, those obligations are valid. In the previous ruling that kind of fettering of discretion was canvassed extensively, and obviously this Parliament maintains that jurisdiction to legislate.

Let us examine whether there are any consequences that flow from the court decision that was rendered in this matter.

I think we have to look at the decision. I do not know that the hon. member for Guelph took you through what it actually determined. However, the justice, in his summary of the issues, did state the following:

“The Applicants

--those being the people who brought the matter to court--

--confirm that the validity of Bill C-18, and the validity and effects of any legislation which might become law as a result of Bill C-18 are not in issue in the present Applications.

It did not contest the validity of the bill or the validity of it to be before this House. In fact, a further statement is:

The Applicants make it clear that their Applications are no threat to the Sovereignty of Parliament to pass legislation.

Therefore the question of whether or this House could deal with it and whether it was appropriate for this House to deal with it was not even before the courts. The applicants confessed or acknowledged that it was fully within the jurisdiction of this House to deal with those matters, and that was not a decision. Should there be any confusion on that, one can go to the end of the decision. It is at page 21 of the decision of Justice Campbell. In that conclusion, he poses the question of the effects of his declaration.

He issued a declaration; he did not issue an injunction prohibiting Parliament from dealing with the legislation at all. He said that the applicants acknowledged it was appropriate for Parliament to deal with the legislation, but they did not dispute the validity of the legislation.

That raises the question of what the effect of his decision is.

He makes it clear that there are two meaningful effects of granting the declarations. The first effect is that to provide a meaningful opportunity for dissenting voices to be heard was the purpose of the legislation. The ruling says:

Judicial review serves an important function; in the present Applications the voices have been heard, which, in my opinion, is fundamentally important because it is the message that s. 47.1 conveys.

He said the court proceeding allowed those voices to be heard, and that is an important effect.

“The second and most important effect”, he says, “is that the minister will be held accountable...”.

He himself says that there are only two effects, and neither of those effects limits the ability of this House of Commons or of the Senate or this Parliament to pass legislation.

The section in question, section 47.1, is actually one that is being sought to be changed, to be repealed, in fact. Obviously, that would have no effect should the legislation be successful. The justice has clearly said in his decision that there is no effect at all on anything we are doing in this place.

Based on that decision itself, there is nothing new that my friend has brought to you, Mr. Speaker. I listened closely to his arguments. I did not see any authorities that suggested otherwise. I did not see anything that he could glean out of the decision that said we had to cease our discussions, and the Senate had to cease its discussions. No injunctive relief was provided in that regard. As a result, Mr. Speaker, I think the decision that you rendered in the earlier arguments on this matter fully satisfies the questions, and we are re-plowing the same turf all over again quite unnecessarily.