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

[Rob Walsh]

No, I had no contact with members of the committee while preparing my report. I made a conscious decision not to speak with members of the committee whilst drafting it. The only time that I spoke with a member of this committee about the report was after having given it to the chairman in the evening of Wednesday, May 31.

[Benoît Sauvageau, Bloc, Repentigny, QC]

And it was not to me that you spoke.

Did somebody instruct you to write the report, or did you do so of your own accord?

[Rob Walsh]

I did so of my own accord.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I would like to follow on from what Mr. Murphy was saying.

In the conclusion, which can be found on page 11 of the French text, you state the following:

Notwithstanding our view that some of the proposals of Bill C-2 are contrary to the Constitution as they fail to respect the constitutional position of the House, it is not unconstitutional to enact legislation that limits the constitutional privileges of the House.

When the Minister of Justice rose in the House this afternoon, waving around your report, and saying that it confirmed that he was in the right, it made me think of what happened in 1981, when it was decided to repatriate the Constitution. It was said that to do so was not illegal, but... Perhaps you could refresh my memory?

[Rob Walsh]

I did not hear the answer that the minister gave in the House today. The repatriation of the Constitution in 1981 was an entirely different kettle of fish.

[Benoît Sauvageau, Bloc, Repentigny, QC]

It was said that it was not illegal, but that it was immoral.

[Rob Walsh]

Immoral? I do not think that it is a matter of immorality.

[Benoît Sauvageau, Bloc, Repentigny, QC]

It is to a degree. While it would not be unconstitutional to amend the constitutionally guaranteed privileges of the House, it would be a major change.

[Rob Walsh]

Perhaps, but Parliament has the right to change its privileges if it sees fit to do so.

[Benoît Sauvageau, Bloc, Repentigny, QC]

If Parliament sees fit to do so.

[Rob Walsh]

Exactly.

[Benoît Sauvageau, Bloc, Repentigny, QC]

If Parliament did want to, how would it go about it?

[Rob Walsh]

By means of the amendments included in Bill C-2, by stating that, notwithstanding the constitutional privileges of Parliament, in clause 6 or in clause 21...

[Benoît Sauvageau, Bloc, Repentigny, QC]

Even if it would amend the Bill of Rights, which dates back to 1889?

[Rob Walsh]

The problem is that it requires a constitutional amendment. We cannot use the standard legislative avenues. Changing how the 1889 act is applied would involve amending the Constitution.

[Benoît Sauvageau, Bloc, Repentigny, QC]

In the introduction of your report it is stated that:

The executive branch should never have legal control of the legislative branch (the House or the Senate). Otherwise, there would be no effective difference between a Parliament with a majority government and one with a minority government and the constitutional function of the House of holding the government to account would be a nullity. The House's legal autonomy is sustained through the application of long-standing principles of parliamentary law which are generally described by the term “parliamentary privilege” and form part of the constitutional law of Canada.

Further on, you state:

Some provisions in Bill C-2 seem to run contrary to the constitutional position of the House. These are provisions that [...]

You then go on to list the provisions in question. You state that Bill C-2 has an effect on the balance between parliamentary privilege and parliamentary tradition.

[Rob Walsh]

Of course. It affects the balance between the legislative, executive and judicial branches. The constitutional context in which our parliamentary system evolves grants rights to Parliament, to governments, and to the judiciary. This results in a form of balance. Would this balance be changed by amending these privileges? Perhaps. It is therefore important to be cognizant of what one is doing.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Let us say, for argument sake, that somebody were to consider themselves to be a superior being and that they thought the bill to be perfect—I hope nobody thinks that I am talking about them—and did not want to hear talk of any of your suggested amendments. Were such a person to exist and hold such views, what would be the potential consequences?

[Rob Walsh]

In its current format, if a member, a minister or a parliamentary secretary were to challenge the act and to decide to seek legal advice, the matter could end up before the courts, which would generate uncertainty. In fact, the House could grind to a halt while waiting for the court to hand down a decision.

That is the problem that I see as a lawyer. Given that there is a conflict between the constitutionally guaranteed parliamentary privileges and the provisions contained in this bill, which are statutory provisions, somebody could initiate legal proceedings on the grounds that the act is contrary to the right of parliamentarians. Uncertainty would reign while you awaited the decision. It would be particularly problematic in the case of a tie vote or where the Chair had to vote in order to pass a motion. Furthermore, if somebody thought that a minister or a parliamentary secretary was a in a situation of conflict of interest, he or she could take the matter to court arguing that the vote ought to be nullified.

Clause 9 states that the courts cannot interfere in affairs of the House of Commons; however, were the Ethics Commissioner involved, the court could be asked to review his actions. That would create a situation of uncertainty. Would parliamentarians have to wait months, or even years, for a decision to determine whether a vote is to be upheld? As a lawyer, I do not like uncertainty. I want to see provisions that provide certainty as to the process to be followed.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Thank you to the House law clerks for coming forward with this report at this time dealing with these constitutional issues at this stage, so that we can deal with them at this early stage rather than waiting for problems to possibly emerge at a later date.

I was hoping your presentation today might deal with a verbal overview of what problems you've identified, and even perhaps recommendations on how we might fix them, but we jumped right into questioning. I'll try to use the time as best I can.

One of the key things you've pointed out is that the officers of Parliament or Parliament's agents, whether in the newly created offices the bill contemplates or even as existing officers of Parliament, do in fact perform executive functions. This is a thing you're trying to illustrate in your report.

Have we known about this all along? Has this been something that's grown and evolved with the expanding roles of some of the officers of Parliament, and did it simply become a “straw that broke the camel's back” sort of issue when we compounded the problem by introducing new officers?

I'm curious as to why the status quo, with our current slate of officers of Parliament, whether the Information Commissioner or the Auditor General, etc., has now become a constitutional issue that must be addressed immediately.

[Rob Walsh]

Mr. Chairman, the executive nature of the duties of the officers of Parliament, while noted in our report, isn't something that means to say that therefore they're operating under the direction of the government of the day. I don't mean to cause members to think that because we describe these officers as having functions and duties of the nature of executive action we therefore think they are not to be trusted with the duties the statutes have given them.

[Pat Martin, NDP, Winnipeg Centre, MB]

You go as far as to say they are a part of the executive branch.

[Rob Walsh]

Correct. In the broad sense, they're not judicial and they're not legislative. So they're in the executive branch. But that doesn't mean they don't enjoy the independence that may be sufficient to the satisfaction of members of Parliament and that there's no wrongful interference by the government. So it's a judgment call on the part of this committee in the case of C-2 as to whether there is anything here that concerns you.

But if I could, Mr. Chairman, just briefly respond to Mr. Martin relative to the overall picture, there are two principal themes here. One is the constitutional position of the House, and the second is the fact that there is a lot of legal uncertainty, in my view, that develops by virtue of the legal duties placed on members and legal powers given to the Ethics Commissioner, which, when put into action, can give rise to legal processes of a kind that leave everybody in a roomful of lawyers. Then you end up with a problem where you don't know what you've decided when you decided it, because you're now into a legal process that has to work itself out.

Traditionally, the House does its business as it sees fit and the courts stay out of it. You want to minimize the intrusion of any outside officers into that business or you run the risk of being dragged into court proceedings pertaining to the propriety of the actions taken under the authorizing statute.

[Pat Martin, NDP, Winnipeg Centre, MB]

I won't pretend I understand all that. I swear, a carpenter is at a disadvantage in this setting.