Bill C-2 (39th Parliament, 1st Session) Committee on June 12th, 2006

[James Stringham]

That is correct.

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

So it does not alter the substantive intentions of the bill in any way. It just ensures that the coming into force provisions do not create unnecessary loopholes.

[James Stringham]

That is correct, Mr. Chairman.

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

It closes a loophole, in effect. Okay.

Question.

[The Chair, Conservative, David Tilson]

No, no, not yet.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

It's somewhat complicated. My only question is this: does this amendment apply retroactively to anyone?

[James Stringham]

No, not at all. It continues the regime from the present code with respect to senior public office holders and just maintains it. Then it's taken over.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you very much.

[The Chair, Conservative, David Tilson]

Okay.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

The next clause, clause 39, relates to the subject matter of gifts to candidates. There are a series of other clauses that are related to this particular clause.

I am suggesting that we follow the same procedure we did with clause 2 and that we deal with all of the amendments that pertain to the subject matter of clause 39 before I put the question on clause 39. In other words, we'll do the same process for clause 39 as we did for clause 2.

[An hon. member]

There is no page for clause 39 in the book.

[The Chair, Conservative, David Tilson]

You have to let me finish this, and then we'll try to answer all your questions. I want to say this, and then you can make sure you're clear.

First of all, we're going to deal with the amendments to clause 40. Once this is done, we will put the question on clause 39. Its results will be applied to all the consequential clauses—clause 40, clause 56, and clause 58. Do you want me to repeat that, or are you all clear?

Good, you're all clear.

(On clause 40)

We will call the first amendment, which is L-1.9 on page 45.1 of the book--which seems to go on and on here forever--that relates to clause 40.

Ms. Jennings.

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

When Mr. Walsh made a statement to the committee and answered questions about his concerns that certain provisions of Bill C-2 violated the constitutional autonomy of the House and of MPs, he pointed out that the right of MPs to participate in debate and to vote was part of the process of constitutional autonomy and of the constitutional workings of Parliament.

Lines 27 to 33 of clause 40 on page 55, which amends subsection 96.6(2) of the Canada Elections Act, stipulates the following:

(2) An elected candidate who fails, within the required period, to provide a statement as required by subsection 92.2(3) or to make a correction as authorized by subsection 92.3(1) or 92.4(1) shall not continue to sit or vote as a member until it is provided or made, as the case may be.

Mr. Walsh made it very clear that this provision violated the constitutional autonomy of the House to draft and adopt rules governing the conduct of members, rules such as who is entitled to vote, who can participate in debates, and so forth.

By deleting lines 27 to 33, as I propose in my amendment, the House would continue to have authority over such matters. However, it would still be free to amend the Standing Orders to include the wording of this subsection, if it deemed such action advisable.

So this ultimately touches on the rights of members of Parliament to vote and debate in the House and on the constitutional autonomy of the House to determine who has the right to vote and debate.

If we delete lines 27 to 33, it means the House continues to have that constitutional authority and can, if it wishes, in its good judgment, decide if an elected candidate who omits to file the statement as laid out in Bill C-2, or to correct it, as authorized under Bill C-2, has the right to sit or not. It's the same, once an election happens, as our not being allowed to sit and not having access to a member's operating budget, etc., until there's a certificate from the Chief Electoral Officer, under the House orders, certifying that we are in fact the candidate who won in the particular federal riding in which we ran. At that point, we have to swear an oath, and then we benefit from all the rights and privileges of a member of Parliament and we can begin to draw our salary. It goes retroactively to the election date, but until that certificate comes to the House of Commons through the proper channels, we're not allowed to sit. So if a certificate takes six months and the House is recalled after an election, that elected candidate may not sit, may not debate, and may not take part in votes.

So in the same way, I think it should remain the constitutional authority and autonomy of the House to make that decision.

[The Chair, Conservative, David Tilson]

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Chair.

I was simply going to voice our concern as well with the point that Mr. Walsh raised. It was a graphic illustration of what is wrong with the direction of some of this bill, when he pointed out that it should be the will of the people that has primacy here, not some administrative detail or filling out the correct form in triplicate. To block a duly elected member of Parliament from taking their seat and exercising their duties, based on the failure to cross a “t” or dot an “i”, seems a breach of privilege, a breach of the primacy of Parliament, giving too much authority to statutory administration.

So I support this amendment.

[The Chair, Conservative, David Tilson]

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Mr. Chair.

I wanted to get our technical experts to give an overview of this clause, if they could.

[Joe Wild]

Mr. Chénier would be pleased to do that.

[Marc Chénier, Counsel, Democratic Renewal Secretariat, Privy Council Office]

Thank you, Mr. Chair.

I'd like to point out that there are safeguards in Bill C-2 to protect against an undue empiètement on the privileges of the House. If one looks at the proposed section 92.3 in clause 40, this allows the candidate to seek an extension from the Chief Electoral Officer to either file the return or make a correction to the return. The Chief Electoral Officer applies a test that's provided for in that proposed section and grants the extension if the delay was due to the illness of a candidate, to inadvertence, or to an honest mistake of fact. What this means is essentially the Chief Electoral Officer will grant the request for an extension, unless there's an indication that the intention was to not provide the statement, for a dishonourable purpose, or was to try to hide something.

Where the Chief Electoral Officer refuses to grant the extension, or if the person is outside of the delay that was given by the Chief Electoral Officer, then there's another safeguard that the candidate, or the member in this case, can go to a judge and obtain an extension from the obligation to file the statement. Again, the criteria is the same. So it's granted if the delay was due to the illness of the candidate, to inadvertence, or to an honest mistake of fact. Basically, you need two independent, if I can call them, officials—the Chief Electoral Officer and a judge—to have reason to believe that the failure to file the return was due to an attempt by the member to circumvent the disclosure requirements.

Of course, it's up to this committee to decide whether it wants to deal with this through the House code or through the legislation, but the presumption behind clause 40 is that there's a public interest in having an MP disclose any personal gifts that may have an influence on how he or she votes in the House of Commons. If there's any indication that the member may be trying to circumvent the disclosure requirement, then this particular clause says that he or she can't sit until the statement has been provided and until there's full openness about any gift that he or she may have received that could influence a vote.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Chair, so I'm clear here, I would ask Mr. Chénier this. What you're suggesting then is that without the amendment proposed by Ms. Jennings, currently in the act there are provisions that would allow a member to almost invariably get an extension, and the only reason a member would not be granted an extension, listening to what you have said, is if there was a determination by the Chief Electoral Officer and a judge that he or she had done something deliberately to not file for some other reason.

In most of the cases Ms. Jennings was referring to, I think it would be through inadvertence, or perhaps a legitimate reason due to illness. So the member would not be penalized unduly, because there are provisions currently in the act allowing for an extension to be granted. The way the legislation is currently written, if I interpret what Mr. Chénier is saying correctly, the only people who would not be granted an extension are those who are trying to do something untowards in a deliberate fashion.

[Marc Chénier]

If there was any indication either to the Chief Electoral Officer or a judge indicating that there was something untoward happening, that is so.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you.

[The Chair, Conservative, David Tilson]

Mr. Poilievre.

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

This is actually a very important point. The law is not designed to give an unelected bureaucrat the ability to withhold the parliamentary privileges of a duly elected member. It's designed to withhold those privileges from someone who may not have actually been elected properly, because they may not have actually followed the rules and that is the reason why they have not filed their forms. In those circumstances, where someone has not filed all of their documentation, it's perfectly legit and they've not done so for a reason that a judge or the commissioner believes is due to a breach of the Canada Elections Act...in those cases you can argue that the member's election to office is, by itself, possibly illegitimate. That is the reason why we're pursuing this approach.

Ms. Jennings talked about if someone had an administrative error, got sick and couldn't fill out all their forms. Do you see those as being real reasons under the current law for a commissioner to deny someone the privilege to sit in the House of Commons? Perhaps Mr. Wild can offer a concrete example of where it would apply.

[Marc Chénier]

Mr. Chair, I guess there's currently a parallel provision in the Canada Elections Act, where if the official agent of a member has not filed Canada's election return, they can't sit or vote in the House of Commons. Exactly the same safeguards exist with respect to that possibility. To my knowledge, since the provision was adopted there has not been a case where a member was not permitted to sit or vote in the House of Commons.