Evidence of meeting #23 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 amendment.
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
But it's set up as an “or”. There are two distinct heads of commencing an investigation that are set up in the amendment.
Bloc
Monique Guay Bloc Rivière-du-Nord, QC
I do not agree with you. If you read the rest of the section, you will see that the Commissioner has every right he needs to decide whether to investigate or not, even if a parliamentarian so requests. The Commissioner may accept or refuse to investigate. Even if a parliamentarian were to request an investigation, there are many provisions in this bill that would allow the Commissioner to refuse to investigate under any one of a number of provisions in this bill. He or she could refuse.
We are not giving any special rights to parliamentarians, but should they become aware of a failure to comply, we want them to be able to request the Commissioner to investigate. The Commissioner maintains all his rights. Indeed, we say that if he “has reasons to believe“ an investigation is appropriate, he will have all the means required to conduct one. It is as simple as that.
I totally disagree with you. We are not taking any rights away from the Commissioner. He maintains all his rights. He could easily decide that the request from a member of Parliament is not valid for any one of the reasons listed here, or for any other reason he may have. He maintains all the powers of his position. He is the Commissioner. So, whoever brings a complaint, if he decides it is not valid, he can refuse to investigate. The parliamentarian has no more rights than the Commissioner. This is not at all what this amendment is about. This amendment is about allowing a parliamentarian, if he deems it appropriate, to bring a complaint before the Commissioner. At this time, the Commissioner makes the decision he considers appropriate.
Conservative
The Chair Conservative David Tilson
I don't know whether I want there to be a debate between you, but do you have some brief comments?
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
I guess I'll be as brief as I can.
The issue, from our perspective, is one of a technical legal interpretation. We see the amendment as setting up the potential for a bit of an ambiguity in the way the act is working, in that it's a bit of a disconnect--again, from a technical legal perspective--to see something that obligates a commissioner to investigate if he or she is requested to do so by a member, while in another clause it says he or she can refuse.
Simply from a technical perspective, if one is trying to capture the policy principle that the commissioner can receive information from a member of the Senate or House of Commons and take that information into account in determining whether or not to investigate a particular matter, our perspective would be that subsection 10.4(1) as it is currently drafted already enables that. It doesn't do so in an explicit way, but it's certainly implicit in the wording that is there.
Bloc
Monique Guay Bloc Rivière-du-Nord, QC
No, Mr. Chairman, because this is not specified. We want to really specify that a member of Parliament can request an investigation. It is extremely important for us to have this included in the bill.
On page 76, in subparagraph d), it says that the Commissioner may decide:
d) there is any other valid reason for not dealing with the matter.
Therefore, the Commissioner's hands are entirely free. We do not impose any obligation on him; we simply ask him to receive complaints from parliamentarians, and it will be up to him to decide whether they are valid or not.
So I do not see why we could not include this amendment.
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
I'm not sure there's much more, Mr. Chairman, that I could say other than what I've already said, which is that from our perspective it does create the potential of an ambiguity in the legal interpretation of the operation of the two subsections, and that there is nothing in subsection 10.4(1) as it's currently worded that precludes a member or senator from bringing information to the attention of the commissioner.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Mr. Wild, the amendment to subsection 10.4(1) in the French version would read: “Le commissaire fait enquête lorsqu'il reçoit une demande [...]”. This means that he would be compelled to investigate without any possibility of refusing. The present language in the bill gives him that discretion.
The French text would simply cancel all the other provisions because he would no longer have a choice. Even if the movers say he has a choice, the words “shall conduct an investigation if he or she is requested to do so” mean that he would no longer have any discretion under subsection 10.4(1), whereas he has that discretion at the present time. Therefore, this would reduce the powers of the Commissioner.
Senior Counsel, Department of Justice
Maybe it would reduce his discretion...
Conservative
Conservative
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you.
I believe I understand what Monsieur Sauvageau was trying to get at. I also understand very clearly the point you've raised, that the way in which Mr. Sauvageau's amendment is worded, the commissioner would have a legal obligation to conduct an investigation once he or she receives a request from a parliamentarian, an MP or a senator, but doesn't have to have reason to believe that an investigation is necessary to ensure compliance with the code or the act, and has the legal obligation to conduct such an investigation when any other information may come from another source. So it's like two different weights, if I could call it that.
So if the last line of Mr. Sauvageau's amendment were changed to read “Commons and/or has reason to believe”, would that take care of the concern that you have? I believe if that were the wording, the commissioner would be legally obliged if a request were made by a parliamentarian and the commissioner had reason to believe that an investigation was necessary to ensure compliance, and the commissioner would also be legally obliged to conduct an investigation as well if he or she had reason to believe an investigation was necessary.
So regardless of where the information or request came from, there would be a requirement for the commissioner to conduct an investigation only if the criterion or condition was met that the commissioner had reason to believe that investigation. So that change would satisfy the nebulousness that you were seeing in Mr. Sauvageau's amendment. Is that correct? Maybe not.
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
Mr. Chairman, the “and/or” is a bit of an unusual method from a technical drafting perspective. In order to capture the basis of the language, I could certainly suggest that if we rewrote it, sticking with the language as we have it now in the amendments, we'd be talking about:
The commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons....
We would then continue. If that captures the principle, it would be a method of doing it.
Conservative
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I move a subamendment with the wording that has just been suggested by Mr. Wild.
Conservative
The Chair Conservative David Tilson
You mean including information received from the House of Commons--is that it?
I'm trying to find out what's going on here.
Mr. Wild, could you repeat what you said?
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
I'll read it in subamendment language, if you will, and that may assist.
We would be amending the amendment proposed by Mr. Sauvageau by replacing it with the language that follows. I'll read it in English and then in French. In English:
investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons,
And in French it would read:
[...] lorsqu'il a des raisons de croire, notamment sur le fondement de renseignements qui lui ont été transmis par un parlementaire, qu'une enquête est [...]
Conservative
The Chair Conservative David Tilson
That's your subamendment, Ms. Jennings.
Mr. Poilievre is next, on the subamendment.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
I support the subamendment.
(Subamendment agreed to)
Conservative
The Chair Conservative David Tilson
All those in favour of the amendment as amended?
(Amendment as amended agreed to) [See Minutes of Proceedings]
Conservative
The Chair Conservative David Tilson
We now move to government amendment G-28.1, which is on page 64.1.
Mr. Poilievre, will you move the amendment?
Conservative
Senior Counsel, Department of Justice
Actually, this is a rather technical amendment. In section10.4 of the Lobbyists Registration Act it's to replace, in proposed paragraph 10.4(1.1)(c), the word “disclosure” with the word “matter”, so it would read,
(c) dealing with the matter would serve no useful purpose.
The reason for this is that in proposed paragraphs 10.4(1.1)(a) and 10.4(1.1)(b) we deal with the word “matter”. We use the word “matter”; “disclosure” would bring in a new concept that might be a bit difficult to understand.