Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 13th, 2007

[The Chair, Conservative, Rick Dykstra]

I'd like to make my ruling first.

First I'm going to make three points leading up to a decision in terms of the motion itself. The first one is that Standing Order 113(5), which relates directly to legislative committees, states the following:

Any legislative committee shall be empowered to examine and enquire into the bills referred to it by the House and to report the same with or without amendments, to prepare a bill pursuant to Standing Order 68 and to report thereon and, except when the House otherwise orders, to send for officials from government departments and agencies and crown corporations and for other persons whom the committee deems to be competent to appear as witnesses on technical matters, to send for papers and records, to sit when the House is sitting, to sit when the House stands adjourned, and to print from day to day such papers and evidence as may be ordered by it.

There are three points here, and the first is the form. From this I'll emphasize the quote, “report the same with or without amendments, to prepare a bill pursuant to Standing Order 68 and to report thereon”.

The second point is that the standing order states that the legislative committee can only report the bill that was assigned to it. No division of the bill into portions or separate bills is requested as per the motion.

Third, the contrast to this is Standing Order 108(1)a, which deals with standing committees and allows them to table reports from time to time on various issues, giving them more latitude. I can certainly read the standing order. If you ask me to, I certainly will, but I don't think it's necessary. It simply points out that the standing committee has more latitude with respect to this.

The second part is that if you pay attention to the first part of our motion that we received from the House, it indicates:

That, notwithstanding any Standing Order or usual practice of the House, Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, be proceeded with as follows:

And the motion actually outlines what our responsibilities are. I speak very specifically to a part of this, which states that:

proceedings in the committee on the Bill shall be conc1uded as follows: if not previously concluded by midnight on Thursday, November 22, 2007, at midnight...any proceedings before the legislative committee shall be interrupted, if required for the purpose of this Order, and in tum every question necessary for the disposaI of the committee stage of the Bill shall be put forthwith and successively without further debate, at the conclusion of the committee stage the Chair shall be instructed to report the Bill back to the House on Friday, November 23, 2007

So the motion is very specific in terms of when this committee is to report back to the House. In fact, if we are not done by midnight on Thursday, November 22, the chair is to report back to the House on Friday, November 23, without amendments. I just want to point out that the motion was unanimously passed through the House by all four parties.

Finally, my third point on the ruling is that Mr. Comartin's motion begins with the operative clause, “That the Committee adopt the following report”. As the committee can only report the bill, clearly such a report is out of order, because as committee members are aware, motions required to be tabled in the House are presented as reports. And as I previously mentioned, this committee is only empowered to report the bill with or without amendment. The motion from the House did not allow for an extra order of reference authorizing the committee to report more than the bill itself. This committee can only report the bill with or without amendment. It is my interpretation that if the committee wishes to seek instruction from the House, committee members should--and they are free to--raise that matter directly in the House as opposed to tabling a report from the committee and moving concurrence of that report.

It's my determination that Mr. Comartin's motion contravenes the instructions given to us by the House of Commons. For the three reasons stated above, I'm ruling that this motion is out of order.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

To start off, I would have appreciated being advised, Mr. Chair, that in fact you were going to make a resolution so I could have prepared counter-arguments. I think I can respond to the last two with regard to the time limit issue.

The motion in fact--

[The Chair, Conservative, Rick Dykstra]

Mr. Comartin, I apologize, but the decision I've rendered isn't debatable. Obviously there is--

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

But I can challenge the chair, Mr. Chairman.

[The Chair, Conservative, Rick Dykstra]

You certainly can do that, Mr. Comartin. You're more than within your right, as a member of this committee, to challenge the chair on his ruling.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I would do so, but ask that the motion now stand down so I've got the opportunity.

I just want to say to you that I had cleared this motion with the table as in fact being a proper motion. I want to go back now and gather together the material they had to show that in fact this was in its proper form. I think the committee deserves that opportunity. So I'd like to have the motion tabled and put over until tomorrow so I can prepare that material.

[The Chair, Conservative, Rick Dykstra]

You can make that request to the committee, Mr. Comartin, but you need unanimous consent from the committee to withdraw the motion and then we'll deal with it at our next meeting date, which is tomorrow.

Do I have unanimous consent?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Chair, I'm not asking for the motion to be deferred, I'm asking for the challenge of your determination to be deferred until tomorrow. And that does not require unanimous consent.

[The Chair, Conservative, Rick Dykstra]

I understand why you would like to do that. The difficulty with that is that a challenge of the chair is not debatable. So you can certainly put the motion forward to challenge the chair, and if you get a majority from this committee, we can then deal with your request to move the motion forward.

Based on that, just to be clear, so everyone understands, what I'm asking is for the chair's ruling to be sustained. If you're in favour of the ruling that I've indicated, then you would obviously say yes. If you're opposed to the ruling that I've presented, then obviously you would say no.

Point of order.

[Réal Ménard, Bloc, Hochelaga, QC]

I am not sure that we understand each other. You made a decision on a colleague's motion. I feel that this group may wish not to deal with the decision now. We understand that it is not debatable, but we can decide not to deal with it. And we can certainly ask for what has just been said to be tabled.

Why are you insisting on a vote? Who is asking for a vote? Is it you asking for a vote on the decision you have just made?

[The Chair, Conservative, Rick Dykstra]

Monsieur Ménard, the reason I'm calling for the vote is because when a challenge is issued to a chair's ruling, it's not debatable. Mr. Comartin requested unanimous consent to withdraw his motion so that we could table it and deal with it potentially tomorrow. That was not supported unanimously, so his challenge to the chair stands.

I would call for a vote that the chair's ruling be sustained.

(Ruling of the chair sustained)

[The Chair, Conservative, Rick Dykstra]

Okay, the motion is carried.

Yes, Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chair, I just want to tell you that we are greatly concerned about the way our deliberations are proceeding, given that the list of witnesses that we received from the clerk does not include a constitutional expert. I will give a notice of motion to the clerk this afternoon, but I do not think that the Bloc will agree to begin clause-by-clause study without legal opinions. Either the minister should come back to provide them, or we should find witnesses. But I cannot imagine that, as a committee, we would be so careless as to begin clause-by-clause study without the opinion of constitutional experts, certainly in the light of what these witnesses have told us. I am therefore sharing with you my great concern about the position in which we find ourselves.

[The Chair, Conservative, Rick Dykstra]

What you're asking for is additional witnesses with specific expertise to deal with the constitutional issues surrounding Bill C-2.

[Réal Ménard, Bloc, Hochelaga, QC]

Or the minister.

[The Chair, Conservative, Rick Dykstra]

Okay.

Yes, Madame Jennings.

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

I think that Mr. Ménard has raised a very important point. We have heard presentations from the Minister of Justice and his officials, and they have assured the committee that the part of the bill relating to the previous Bill C-27 is constitutional and in accordance with the Charter. A number of witnesses have told us that they believe that it is not in accordance with the Charter, and that there may well be a lawsuit challenging the constitutionality of that section.

If the committee is not able to find a constitutional expert who could talk to us about that question, I ask, as Mr. Ménard has done, that experts from the Department of Justice come here and respond point by point to each of the questions that have been raised by other witnesses about the constitutionality of this part of the bill.

[The Chair, Conservative, Rick Dykstra]

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

They could provide something in writing.

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

I do not want just a verbal reply. Some witnesses have told us that they think that some points are not constitutional. We need an answer.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chair, I do not want to try your patience, but the clerk could even tell us at the next meeting. I know that when a minister signs a memorandum to cabinet, it has been examined for its constitutionality and its compliance with the Charter. Maybe, for this occasion only, the minister could provide us with the memorandum to cabinet in camera, even if we are...

[The Chair, Conservative, Rick Dykstra]

We're now getting into department recommendations that go directly to the minister, and that wouldn't necessarily come here, so we need to be a little bit careful about that. I will indicate that when we determined our schedule, with respect to witnesses and how we were going to handle this, there was agreement around the table. I believe that we left open our option to ask the ministry to come back prior to doing clause-by-clause. I would think that this is a pretty good opportunity or an opportune time to ask the ministry to be specific to the issues that have been raised with respect to constitutionality. I'm not sure that we're going to get point by point, Madam Jennings, but I think we should be able to get folks here from the ministry to be able to deal with that. And, saving that, we do have an opportunity to do that because one of our sessions has only two witnesses, so we could actually use some of that time to pursue with the ministry.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Chairman, could I ask you also, in this same vein, to alert the parliamentary counsel who will be here for clause-by-clause that this question will arise? Then the parliamentary counsel should do whatever is appropriate to prepare for that question at that time.

[The Chair, Conservative, Rick Dykstra]

Thank you for that. We'll will make sure that they're aware of it.

The meeting is adjourned.