Evidence of meeting #19 for Bill C-2 (39th Parliament, 1st Session) in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was parliamentary.
Conservative
The Chair Conservative David Tilson
As I understand it, Mr. Walsh gives the committee advice; Mr. Wild gives the government advice.
Conservative
The Chair Conservative David Tilson
That's not true?
You're absolutely right. He gives Parliament advice, but as I understand it—and I'm sure you'll all correct me—if there's to be legal advice given to this committee, that legal advice is given by Mr. Walsh.
Law Clerk and Parliamentary Counsel, House of Commons
That's correct.
Let me put it this way. Mr. Wild or any other Department of Justice lawyer who might be here and present himself or herself to assist the committee in considering a government bill may be asked questions that call for a legal answer, and you might see that as giving legal advice. But the committee is not that lawyer's client, so he has no duty to advise that client in the client's interest. As Mr. Wild—I heard his testimony before this committee—I think indicated, he can try to explain some of the technical features of the bill to the members of the committee, but he doesn't see himself as having a legal advisory role to the committee.
Conservative
The Chair Conservative David Tilson
Yes, and I recall, Mr. Sauvageau, that Mr. Wild will be available during the amendment process.
Does that thoroughly confuse you?
Bloc
Benoît Sauvageau Bloc Repentigny, QC
Yes, because when he appeared before the committee, he told us that he could give us legal advice. I am therefore making an official request for legal advice, through you, to somebody who offered to provide me with such a service. Before we proceed with clause-by-clause examination of the bill, I would ask Mr. Wild to provide us with legal advice on the report that was tabled, as he said he would. That is all. The ball is in my court, and I am accepting his offer.
Conservative
The Chair Conservative David Tilson
I don't want to get into debate here; I'm just trying to clarify it.
Legal advice is given by Mr. Walsh, and Mr. Wild could make a legal comment, but it's not “advice to this committee”.
Bloc
Benoît Sauvageau Bloc Repentigny, QC
Very well. I would like to have his legal comments.
Thank you very much, I will have some further questions for you about the amendments.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Just to move the ball forward a little bit, I'm hoping the government members here might want to get rid of the provisions with respect to secret ballot, which would get us out of this constitutional amendment aspect.
Secondly, I'm hoping they will choose to keep parliamentary privileges, which in your second suggestion means that this committee could propose an amendment to the proposed Conflict of Interest Act.
What I'm asking you as counsel to Parliament is how that would work. It exists at other levels of law, where certain boards, agencies, commissions, law societies, etc., give certain rights, but they're inferior to the rights of the Charter of Rights, for instance.
Am I correct in thinking that the proposed conflict of interest subordinate to members' privileges would still be in effect for public office-holders, but that the public office-holder, if he were so impugned or needed the reach, if you like, of the age-old parliamentary privileges, could invoke them?
Is that an understanding?
Law Clerk and Parliamentary Counsel, House of Commons
In answer to your question, Mr. Murphy, parliamentary privilege, and all that that is about, is constitutional in nature. The Conflict of Interest Act is a mere statute. If there are remedies available to a person, a minister, a parliamentary secretary, or a member with respect to provisions of the Conflict of Interest Act, and those remedies are found in parliamentary privilege, they will argue parliamentary privilege has a priority set of laws because it's constitutional in nature, whereas the Conflict of Interest Act is merely a statute.
Law Clerk and Parliamentary Counsel, House of Commons
The two can live together, but there is a priority; there is a hierarchy, and the constitutional prevails over the statutory.
Liberal
Law Clerk and Parliamentary Counsel, House of Commons
I'm concerned by some comments made earlier that since there haven't been many instances of a problem under section 463, there is therefore nothing to be concerned about. As far as that goes, that's true. Again, some may feel I'm overstating the case, but I would like members of this committee to consider what their reaction would be to this bill, and I'm going through a hypothetical just because I don't want to get into the debate about this bill. If the bill had a provision that no private member could introduce a private member's bill without first having confirmation from the parliamentary budget officer that the bill would not require the spending of any public funds, I can assure you that would stop dead in their tracks a certain number of private members' bills. It would give to an appointed officer the ability to stop a member of Parliament from getting a private member's bill onto the floor of the House for debate.
You might say it's one of the sacrosanct rights and privileges of a member of Parliament to propose to the House what he or she thinks is worthy of consideration by the House. Such a provision would give to an appointed official the ability to say “You're not going anywhere; that bill's not going to get into the House.” I would think private members would be concerned about this.
On the other side, suppose amendments were made to this bill, in the interest of accountability, conflict of interest, and transparency, that require that 24 hours before the start of a cabinet meeting the agenda of the items that are going to be discussed at the cabinet meeting be posted on the Government of Canada's website, and that 24 hours after the cabinet meeting that agenda must be modified to indicate if there were any additional items taken up at that cabinet meeting. It also must be provided who attended the meeting, who didn't, so that there could be information provided to the Ethics Commissioner about a possible conflict. Understandably, I would fully support opposition to such suggestions relative to the constitutional convention of cabinet confidentiality. But you can see how you start to slide down the road when you start setting aside well-established principles respecting the autonomy and the independence of the executive branch and the legislative branch. These may be relatively minor, although arguably they're more major than the one that you don't sit if you don't file a form with the electoral officer. These might not be so dramatic today, although in some cases I think they are, but they could get more dramatic later.
The examples I've given you are examples of very serious suggestions, and I would hope the government would oppose any amendment of the kind I'm suggesting relative to the cabinet. I would hope no one would have the idea of limiting a member's right to introduce a private member's bills to what some appointed official says about it.
I would also like to point out as a point of information that—it came up in the House again today, and it may have come up on an earlier occasion too, that the Minister of Justice under the Department of Justice Act is bound to examine all legislation for its constitutionality before it comes to the House. I was surprised when I heard that, so I went to the act. Now it's not beyond me to take the wrong act down from the shelf, but I went to the act, and what's required is that the Minister of Justice satisfies himself or herself that a bill the government's going to propose is not inconsistent with the provisions and purposes of the Charter of Rights and Freedoms, which is only part of the Constitution of Canada. I'm unable to find in the act any obligation on the part of the minister that he must satisfy himself that the act meets all constitutional requirements.
The minister in this case may have done that, I don't know. That's not my business. I thought I would correct the point that was made that the bill wouldn't be here if there were constitutional problems in the mind of the minister. One might accept there aren't any charter problems in the mind of the minister, but under section 4.1 of the Department of Justice Act, it's limited to that.
I would like to close by saying, Mr. Chairman, that I had a lot of trouble determining what it is I should or should not do in the circumstances. I felt obliged that something had to be done because I had the feeling that if nothing was done there might be some unfortunate provisions go into statute law, the kinds of things that my office is spending time in court trying to get the House out from under. So I gave some thought to it. I was not invited to testify before this committee, so I did not think it appropriate that I should walk into the committee meeting and say, hey you, listen to this.
You may not be aware, but Standing Order 13 deals with the question of privileges of the House and where those privileges might be adversely affected by something presented to the House. It obliges the Speaker, whenever he is of the opinion that a motion offered is contrary to the rules, the privileges of Parliament, that he should apprise the House thereof. So I decided, in the spirit of Standing Order 13, that I'd do a report and deliver it to the Speaker, which is what I did. The Speaker then authorized me to bring the report to this committee, and that's when I arrived on May 31. I was dancing as fast as I could to keep ahead of the movement of this committee, as things were moving along fairly well, but fortunately I arrived before it did.
The authorization of the Speaker is not to be taken as any concurrence on his part as to the content of that report. I've had no comment from the Speaker regarding that report. He may agree with some of it; he may not agree with other parts. But I came here with the authorization of the Speaker in the spirit of Standing Order 13.
When I recognized that I might be doing this some weeks ago, I spoke with Mr. Gibson, your executive assistant, on your behalf, to advise him that I was doing this and that I did not know whether it would in fact result in a report coming to this committee; later, as it turned out, it did. I apologize to the committee, to the extent that it arrived and came as a bit of a rude surprise to some that a report was arriving unasked for, as it were. But I honestly felt that as the law clerk of the House of Commons, its committees, and members of Parliament, I was duty bound to do this as a lawyer—experienced now for over 30 years in the field. You don't sit on your hands when you see something happening that may be adverse to your client's interests; you have to intervene and tell the client what's coming down. I've done that.
I don't expect any particular action by the committee. The committee can decide for itself what it thinks is appropriate, and it would do so fully within its prerogatives as a committee of the House. But I felt that I had to deliver what I did deliver to the committee. I hope the committee members do find it useful, and I certainly did not want to impair or interfere in the processes of this committee, or in any way appear to overreach my responsibilities as law clerk. I hope that in the minds of members of this committee, you don't feel I have done so.
Thank you, Mr. Chair.
Conservative
The Chair Conservative David Tilson
Thank you, Mr. Walsh and Mr. Denis. There's none taken. If I could speak on behalf of the committee, I think the committee members appreciate the work you've done and we've appreciated your report.
We have one more item on the agenda tonight.
Mr. Walsh, as you know, if there are going to be any amendments, I have a feeling some of the members may wish to approach you and your staff. If I could trouble you and your staff to wait until after we finish with this next item of business, and perhaps after the adjournment, in case members wish to ask for counsel—or they may not.
Law Clerk and Parliamentary Counsel, House of Commons
Chairman, I've already instructed the lawyers to stay here until the end of this meeting and make themselves available to members. Richard, I think, is able to stay as well. Certainly we're of service.
Liberal
Stephen Owen Liberal Vancouver Quadra, BC
Mr. Chair, just to add to your acknowledgement and gratitude to Mr. Walsh and Mr. Denis, I would give my acknowledgement of the superior quality of the class of 1972 from the University of British Columbia law school.
Conservative
The Chair Conservative David Tilson
Mr. Denis and Mr. Walsh, thank you very much, and if you could stand by, we'd appreciate it.
Ms. Jennings has a notice of motion that has been served on us.
Once that's been distributed, Ms. Jennings, could you read the motion? We'll wait until we all have a copy of it, and then at the conclusion of your reading of it, you can speak to the motion.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you, Mr. Chairman.
I move that this committee, through its chair, request the Minister of Justice and Attorney General of Canada to appear before the committee on Tuesday, June 6, from 3:30 p.m. to 5:30 p.m.
Given the testimony of Mr. Walsh and the brief he has tabled on the issue of whether the Conflict of Interest Act should override parliamentary privilege and the constitutional position of the House, or be subjugated to the Conflict of Interest Act, and given that the Minister of Justice has a responsibility for certifying that any government legislation is in conformity with the Charter of Rights and Freedoms, I believe the minister should come before this committee and speak to us on this issue.
It's a very simple request, and I would expect that the minister would be more than happy to do so.
Bloc
Benoît Sauvageau Bloc Repentigny, QC
The question is either for you, Mr. Chairman, or the clerk. You read a statement about committee votes at our last meeting. Unfortunately, I do not have the blues here with me, and I would like to know whether the chair votes to continue the debate when there is a tie vote.
Conservative
The Chair Conservative David Tilson
First of all, I guess we should wait to see what happens. I don't want to comment until I see what the vote is going to be.
Mr. Moore.