Bill C-2 (39th Parliament, 1st Session) Committee on June 7th, 2006

[The Chair, Conservative, David Tilson]

All those in favour of NDP-1.1 as amended.

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

No, the speakers list is not exhausted, so it's impossible to go to a vote on the amendment.

[James Moore, Conservative, Port Moody—Westwood—Port Coquitlam, BC]

Debate on the motion as amended, is where we are.

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

Yes, we are at debate on the motion as amended.

[The Chair, Conservative, David Tilson]

You're absolutely right, Mr. Poilievre. Is there debate over here, Mr. Poilievre?

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

Yes. I'd like to get some input from the legal experts on the impact of this amendment. Could they give some commentary on how it would affect the administration of the law?

[Patrick Hill]

As an overview, three provisions would be removed from the current proposed section 44.

The first is the question that the member of Parliament must have reasonable grounds, as set out in proposed subsection 44(5), and there's been some discussion about that.

Proposed subsection 44(6) is a duty on a member of Parliament to refer a matter to the commissioner when there are such reasonable grounds, and there has been some discussion about the floodgate concern.

What this provision is designed to do is strike a balance. In other words, once an MP has come to the view that the threshold has been met, there's a duty to refer. Why the need to balance? Just by way of background, under the current regime members of Parliament may bring complaints forward only in respect of ministers and parliamentary secretaries. In other words, at any given point in time there are only about 60 people who may be the subject of a complaint. Under this new regime proposed in the bill, all 3,600 public office holders are the potential subjects of complaints under the regime, so a much larger population of people may be subjects of a complaint.

Obviously the reasonable grounds are mentioned there to give the MP a gatekeeper function like the one MPs have currently in respect of complaints brought against ministers.

The duty to refer is a bit of a countervailing principle; namely, if an MP does have the view that there are reasonable grounds, then he or she must bring the matter forward.

The attestation is there simply to confirm that the reasonable grounds exist. Again, that's part of the balance; it is to ensure that frivolous complaints aren't brought, especially with the much larger group of people who may be subject to these complaints.

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

If this amendment goes through, does the member of Parliament then have any obligation to forward a complaint that he receives, or does it depend on that member's preference?

[Patrick Hill]

There would be no duty to refer, even if reasonable grounds existed on the facts; that's right.

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

They would just decide for themselves what criteria were acceptable to them for forwarding a complaint.

[Patrick Hill]

That's correct.

[The Chair, Conservative, David Tilson]

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

It seems to me that what's being set up under these subsections is this. If the amendment doesn't go through, it leaves the member in the position of having to actually swear or attest to something that's very subjective, and it seems to me that puts someone at risk of criminal offence if it is determined that the grounds aren't actually reasonable.

That's a very subjective thing. I understand the reason for a screen, but I think that could put quite a chill on someone's willingness to attest that something's reasonable. The reasonable man on the Clapham omnibus is pretty hard to define sometimes.

Is that what is happening here? Could someone be liable for a criminal charge for attesting to something that somebody else didn't think was reasonable, but that person did believe was reasonable?

[Patrick Hill]

I'll defer to the lawyers on the question of consequence, but certainly the policy behind the attestation is to signify the importance of coming to the view that there are reasonable grounds in any set of circumstances--in other words, to ensure that no frivolous complaints are brought, especially in light of the larger population that may be subject to them.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Being frivolous is not a criminal offence; swearing a false oath is. I'm worried about that chill factor. I think this was one of the issues Mr. Walsh had some difficulty with, in terms of affecting the autonomy and privileges of MPs and the House of Commons, so I'm looking for some comment from the legal staff on the consequences.

[Joe Wild]

In terms of consequences, I find it very difficult, to be quite frank, to envision a consequence, unless we're talking about perjury--in other words, if the member is actually deliberately, wilfully lying about the matter. An honest mistaken belief wouldn't be sufficient to meet a perjury charge, so it is difficult to see exactly what a sanction would be here, unless the member was actually, to be vulgar about it, lying.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Well, I think many Canadians who watch question period will have noticed from time to time honourable members from all parties who might have actually lied under parliamentary privilege.

[Some hon. members]

No.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Back to my question on parliamentary privilege--which I'm not a great fan of in some cases, such as when people are being defamatory or misleading--does that not get to Mr. Walsh's point of breaking that privilege, because the person is acting in the capacity of a member of Parliament?

[Joe Wild]

Just to help a little bit again on the sanctions side, and then I may ask one of my colleagues here to speak on the privilege side a bit more, it is to point out that proposed section 63 does note that section 126 of the Criminal Code, which is the generic offence for a contravention of a federal statute, doesn't apply to the obligations in the Conflict of Interest Act. That's why I was saying we're really strictly looking at, at most, the possibility of some criminal act that would be perjury of some kind.

Perhaps my colleague Mr. Newman would like to speak to parliamentary privilege.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Sorry, before we finish that point, Mr. Wild, section 126 of the Criminal Code is what?

[Joe Wild]

Section 126 of the Criminal Code is an indictable offence that applies to any federal statute that creates a sufficient obligation at law that otherwise doesn't provide for a sanction if you breach that obligation. So it's a generic sanction that creates an indictable offence for the breach of any federal statute.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

But it wouldn't preclude a perjury charge, though?

[Joe Wild]

No, because it's a specific offence on its own front. It's not saying that the Criminal Code doesn't apply. The question would be whether or not you go so far in making some attestation that you have, in essence, perjured yourself because you're supplying a document that's under oath. And again, that threshold is generally viewed as one of actually lying.

[The Chair, Conservative, David Tilson]

Mr. Newman is going to comment on privilege, I think.

Before you begin, just to remind members, we have about eight or nine minutes, and then we'll have to adjourn.