Bill C-2 (39th Parliament, 1st Session) Committee on June 5th, 2006

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen. I will call the meeting to order.

This is the legislative committee on Bill C-2, meeting number 19. The orders of the day, pursuant to the order of reference of Thursday, April 27, 2006, are Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.

Before we proceed, we have a point of order from Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chairman.

I would like to comment on what I said at our meeting on Thursday, June 1, when we were discussing the tabling of the report drafted by our law clerk and parliamentary counsel, Mr. Walsh. I apologize if what I said offended anybody. I would like to assure members of the committee and the chair that I have the utmost respect for the Speaker, the House, and all parliamentary institutions.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

We have with us today representatives from the Law Clerk's office. We have the Law Clerk and Parliamentary Counsel, R.R. Walsh, and the Deputy Law Clerk and Parliamentary Counsel, Richard Denis.

Gentlemen, we have the document that's been prepared by you. There was a motion that you come to the committee so that members of the committee could ask you some questions. You spoke to me before the meeting and indicated that if there were any comments, you would like to get right into questions, and perhaps there might be a concluding statement at the end.

So we will do that, Mr. Walsh.

Madam Clerk, I need your assistance. Do we have the seven-minute rule here? Yes, we do.

Mr. Owen, go ahead, please.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair and Clerks.

Thank you for being before us today and providing this very useful advice on our deliberations. I have two questions. The first is for Mr. Walsh.

With regard to the constitutional difficulties you've identified with respect to the privileges of members of Parliament in particular, is it your opinion that it is within the powers of this committee to amend this bill so that it can cure any of these constitutional difficulties that you raise? That's my first general question. In some points it's quite clear that it can be. I'm interested in, and will be considering, if we follow that advice, whether that will impair the more general objectives or specific objectives of the bill to the extent that it's not worth it. I'm interested in knowing to what extent this is curable.

Second, I'm interested in knowing whether, as a normal course or in this situation, when there are issues of legislative drafting that do touch upon the business and the privileges of Parliament, and particularly the House of Commons, it is appropriate and common, or appropriate but uncommon, that you are consulted by the counsel at the Department of Justice who is drafting legislation. Did this happen in the case of bill C-2?

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Walsh, go ahead, please.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair.

I'll answer the first of the two questions: are the problems described in this report curable by way of amendment? For the most part, yes, they are, in the sense that making the text of the bill reflect an intention to subordinate the powers, immunities, and privileges of the House to the provisions of the Conflict of Interest Act can be done by way of amendment.

A good part of the report, however, also touches on the consequences that may flow from that by virtue of legal processes that attach to the provisions of the Conflict of Interest Act and the possibility, by virtue of those processes, of the courts becoming involved in the business of members and the business of the House.

In terms of legislative process, amendments to the bill could be made of a kind that, with one exception, enable this to be a proper piece of legislation that goes through. But it would entail either perfecting the bill, so as to make the Conflict of Interest Act prevail over privilege, or the reverse, making amendments to make sure it does not prevail over privilege.

The one exception, of course, is section 49 of the Constitution Act, 1867. It would require a constitutional amendment, in my view, to get around the terms of that provision.

On the second point, regarding consultations with the Department of Justice, no, there were no consultations that I'm aware of between my office and the Department of Justice. And it is not commonly the case that there would be any consultations between the lawyers in the Department of Justice and our office prior to a government bill being introduced in the House.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Okay, thank you, colleagues.

[The Chair, Conservative, David Tilson]

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I want to thank you, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Excuse me, Mr. Murphy, if I could interject, we will have rounds of seven minutes, and then if there's time, we will have five-minute rounds. But you may proceed.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Did that count as my time? I'm just kidding.

Thank you, Mr. Chairman.

I want to, if I may, Mr. Walsh, cut to what I think is the crux of this matter, which is that you have written that Parliament has its own set or sets of privileges and its own customs, which have evolved over time, and legislating away parliamentary privilege or autonomy, to use a word you haven't used, is done sparingly. Obviously, it was done when the country was created, and it was amended in 1868, and you say on page 10 of your brief that, “Since that time there have been no legislated provisions, that we are aware of, that have affected the privileges of the House”. I'm going to take it that you're absolutely correct on that, because it's not a hobby of mine to read 19th-century and early 20th-century parliamentary privilege history.

My question is this. We have the Minister of Justice, who today in the House did not refer to that part of your brief, but to the part immediately before that, which is where you write that you feel that “some of the proposals of Bill C-2 are contrary to the Constitution”, and then, “but it is not unconstitutional to enact legislation that limits the constitutional privileges of the House”. Somewhere else you write that at least Parliament should have their heads up when they do this, when they legislate away privileges.

I guess this is the crux of it. The Minister of Justice and, I can only assume, the government side feel it is within Parliament's power, by a majority vote, to legislate away privileges. But you say that it hasn't been done, basically, since 1868.

Am I summarizing the crux of your opinion correctly with respect to privileges?

[Rob Walsh]

Mr. Chairman, just as the member was speaking, I was looking for where on page 10 I had said that, and I couldn't find it on page 10, but I think I'm finding it on page 8.

What I think I said in the report—and, again, I haven't found the exact wording—was that the privileges of the House of Commons and its members and committees, as established by the Parliament of Canada Act, have not in that act ever been curtailed or restricted by amendments to that act. However, in my view, it arguably is the case that there are provisions out there in various statutes that have, as it were, crept in, perhaps unnoticed, perhaps not, and they constitute an impairment of the powers, immunities, and privileges of the House and its members, much as the provisions in Bill C-2 do, as we indicate.

With regard to the other point you raise about the Minister of Justice, again, I was looking for that text and didn't make a note of your complete question, but I seem to recall that you had a question about a statement made by the Minister of Justice in the House.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Maybe the page numbers are off. I don't know. Under the heading “Closing”, it is the first and only sentence in that paragraph. It's a one-sentence paragraph.

[Rob Walsh]

I'm sorry. That's not the text I was referring to on page 8. It is on page 9.

It is true, as I said in answer to the previous question, that legislation can be passed that has the effect of limiting or diminishing the privileges of the House or its members. As a counsel to this parliamentary institution, I'm urging clarity, so that it is very clear that it is clearly intended that the Conflict of Interest Act is meant to have priority over what may be countervailing powers, immunities, and privileges.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

It's just that paragraph after--

[The Chair, Conservative, David Tilson]

You're going to have to wait for the second round, Mr. Murphy. We were well over.

Before we proceed with Monsieur Sauvageau, as it is now ten after five, I would like to remind members that the deadline for submitting amendments is here; it is upon us. If there are any amendments to be submitted by members, could you submit them to the clerk so that we can include them in the package? If not, we will assume that all such amendments have been received.

Do you have a question on what I just said, Mr. Walsh, or something else?

[Rob Walsh]

In response to what you said, Mr. Chairman, without taking the time of any member, I brought lawyers from my office here this evening so that they can speak to members of this committee immediately after the meeting and perhaps take instruction. I understand that in many cases amendments may be needed tomorrow, as Wednesday you start clause-by-clause study of the bill and of clause 2, which is the Conflict of Interest Act. I asked my lawyers to be here this evening; they will get on to drafting tomorrow, and we're very confident we can make available to all members the motions they may want or need to have filed with the clerk tomorrow.

[The Chair, Conservative, David Tilson]

I appreciate that offer. The problem is that we had set deadlines in a previous motion. I'm at the will of the committee.

Mr. Poilievre has a point of order.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I don't see a problem with taking Mr. Walsh up on his offer, because we have put in place a new provision, I believe, that allows for amendments to be accepted on 24 hours' notice at any point throughout clause-by-clause study.

[The Chair, Conservative, David Tilson]

I don't see a problem either, but I'd rather the committee tell me that. Thank you.

You have a point of order, Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Well, then, I will tell the chair that: that in fact is the motion, and even prior to Mr. Poilievre's hand going up, I've been trying to make that point to you. Mr. Poilievre is quite correct, and if you survey the members of this committee and speak to the clerk, I think you'll find that the motion does allow for amendments to continue to come forward, under those conditions.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Walsh, Mr. Denis, thank you for being here today.

Were you consulted by Treasury Board or any other entity during the six weeks in which Bill C-2 was drafted?

[Rob Walsh]

No, nobody consulted us.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Nobody consulted you even though the bill related to matters of parliamentary privilege.

I will not name any names, but I will ask you a question. Firstly, I would like to thank you for this edifying document on the Federal Accountability Act. Did a member of this committee instruct you to prepare this report?