Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 15th, 2007

[The Chair, Conservative, Rick Dykstra]

Pursuant to the House of Commons order of reference of October 26, the Legislative Committee on Bill C-2 will now resume its study of the bill.

Good morning, everybody. Welcome back for our final session of this week.

Mr. Landreville, perhaps I could just let you know we do have a little bit of committee business to take care of before we turn the floor over to you. If you could bear with us for a few minutes, we'll get through that and then we'll certainly get started with respect to your presentation and questions to follow. So thank you.

When we finished off yesterday, Monsieur Ménard, you had the floor.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I have already made my arguments in favour of the motion. Therefore, if any colleagues wish to add something, I am ready to hear them.

I'm going to wait.

[The Chair, Conservative, Rick Dykstra]

Thank you.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, it is clear that I have already evoked the main reasons why the Bloc Québécois has tabled this motion.

Now, if ever the government were hesitant despite Ms. Jennings' amendment, which seems quite reasonable to me, would it be possible to at least consider getting a letter signed by the minister stating that studies have been carried out to ensure that the bill is constitutional?

I would rather see the research—and I cannot imagine that the government would have lacked the professionalism to have done the research—but I would like us to have written information regarding the constitutionality of this bill before we begin.

I have to tell you in all honesty that if by chance the government were not to take our request seriously, we would have no choice but to table motions for adjournment of the proceedings so long as we did not have any information allowing us to ensure the constitutionality of the bill.

I still have a baby face, but I have been here since 1993, and it is the first time that I have heard so many witnesses tell us that bill is unconstitutional. I have never sat on a committee where, out of a dozen witnesses, nine informed us that the probability of unconstitutionality was very high.

I want to have something, whether it is research or a letter from the minister. I have confidence in the minister. Before going to cabinet, he is supposed to have signed a memorandum—that is how they refer to it—in which he ensures that he has taken the necessary steps to ensure the conformity of the measure.

If we cannot have access to the research, we must have the letter tabled by the minister. In that way, we will be reassured as to the soundness of the work that was done. But if we do not have that, we will have no other choice than to table motions for adjournment on Tuesday morning when we begin our work.

Therefore, I invite the minister, the parliamentary secretary and Mr. Petit to take our request very seriously. We are parliamentary professionals and we love our work and the committee, but we cannot vote without having some minimum guarantees.

[The Chair, Conservative, Rick Dykstra]

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

I read the motion as amended by Ms. Jennings. I think Ms. Jennings and Mr. Ménard know very well and don't need me to tell them—they've actually been here longer than I have—that advice provided to the minister, legal advice from his department, is advice, just that. There is a solicitor-client privilege that goes with that. Frankly, what's being asked would be quite unprecedented.

To address Mr. Ménard's concern on the constitutionality of what's been put forward, the Minister of Justice has already appeared. The question, I believe, was put to him on this bill, and previous to this on the bills that make up Bill C-2 from the last session, as to their constitutionality. The minister has to certify in each case that he believes the bills to be constitutional, based on advice he receives. And that advice is subject to solicitor-client privilege. The minister is not able to provide the type of legal advice that he receives.

Now, as is obvious, we've already received testimony from individuals who have rendered their opinion—not in writing, mind you—and provided legal input as to whether something is, in their opinion, constitutional or not constitutional. But the fact remains....

We can call as witnesses some individuals who are experts in one way or another who may want to give an opinion in that regard, but as to the advice the minister receives—and Ms. Jennings knows this, having been in government at one time—that is subject to solicitor-client privilege. It's up to the client to waive that privilege, which would not happen.

So in the interest of moving things along quickly, I would refer everybody to the testimony that the minister has already given, where he has stated that it's his duty as a minister to certify that legislation coming forward is, in his opinion, compliant with the Charter of Rights.

Mr. Chair, I should add—and I don't necessarily want this to have to happen, because we have a witness here—that we do have individuals here from the department who could give some testimony as to the long-standing history, going way back, that would say that this would not be a practice of the House of Commons, would not be a practice of the committee, and who could explain to honourable members, if they need an explanation, the concept of solicitor-client privilege and the reasons why the client in this case would not be waiving that privilege.

I'll take at face value why Mr. Ménard has introduced this, but the minister has said on this that he believes it's compliant with our Constitution. That's based on the advice he has received, and that advice is subject to solicitor-client privilege. The minister would restate that.

So I don't believe there's any need to proceed on this basis, especially when we have witnesses who are here, ready to testify. We also have witnesses from the Department of Justice who will speak to the bill, but it's not their role to give legal opinions to the committee.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Madam Jennings.

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

Thank you, Mr. Chairman, I greatly appreciate the comments of the parliamentary secretary to the Minister of Justice, Mr. Moore. In fact, solicitor-client privilege could be set aside by the client. In this case, the minister decided not to do so. But according to his statement, Mr. Moore claims that the minister has already stated and affirmed, following a question that was put to him by a member of this committee, that he has already received legal opinions telling him that Bill C-2, more particularly the provisions of Bill C-2 that are directly related to the dangerous offender regime comply with our charter and our Constitution.

Mr. Ménard asked a question of Mr. Moore, and he avoided answering. Mr. Ménard asked if the minister was prepared to simply sign a letter addressed to the chair of the committee giving a written confirmation that, indeed, according to the legal opinions he received—and he would not be obliged to disclose or table those opinions—he certifies that Bill C-2 and more specifically the changes dealing with dangerous offenders, comply with our charter and our Constitution.

A response would satisfy Mr. Ménard as well as my Liberal colleagues. I have not had the opportunity to check the transcript of his testimony before the committee, but if the minister has already made a statement to that effect, it should not cause him any problem to do so in writing. He is not obliged to disclose the legal opinions he received under the protection of solicitor-client privilege. However, he should confirm in writing that Bill C-2 complies with the charter and the Constitution, according to the legal opinions he has received.

Therefore, I would like Mr. Moore to answer that question specifically.

[The Chair, Conservative, Rick Dykstra]

I'm going to allow it, if you wish to answer that question before we go to....

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

Ms. Jennings can't seem to take yes for an answer, because the minister's already been here. He's already testified. It's well known that the minister has to certify that in his opinion all legislation complies with the charter.

We're speaking to her motion. Her motion doesn't ask for something written from the minister, some statement to restate what he's already said at committee. So I'm only at this point speaking to the motion, which, as I've already said, we don't support. Now, if Ms. Jennings has another request of the minister, I can ask the minister that question. But right now we're speaking to this motion, which obviously is an unreasonable motion.

[The Chair, Conservative, Rick Dykstra]

Mr. Bagnell has the floor.

[Larry Bagnell, Liberal, Yukon, YT]

I agree with Ms. Jennings and Mr. Ménard that if we just got a letter it would be solved and we'd be finished; that's easy. But I also think we shouldn't be debating this while we have witnesses waiting.

My other point is that Mr. Ménard and Ms. Jennings haven't asked for the advice to the minister; they've just asked what the department has. So that gets rid of the first complaint against it. Second, on client privilege, this money is paid for by the public. It's in the public interest, and if the minister were acting in the public interest, he would just release it.

[The Chair, Conservative, Rick Dykstra]

We have three more speakers, and then we're starting to go around.

I have you down, Mr. Ménard.

We're starting to go around the horn again here, folks. I think we're going to let Mr. Harris speak, and then I beg the committee to consider that we call the question, or if there are any further amendments, that Monsieur Ménard make them. But I'd like to move this forward.

Go ahead, Mr. Harris.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

I pass my time to the parliamentary secretary.

[The Chair, Conservative, Rick Dykstra]

Mr. Moore, I'm going to let you go. I'll just let Mr. Ménard speak finally to his motion.

Mr. Moore.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, point of order.

Time is marching on and out of respect for Mr. Landreville, I propose that we suspend the debate and that we come back to it before hearing from the officials. If not, we will continue.

[The Chair, Conservative, Rick Dykstra]

Monsieur Petit is next on a point of order.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Chairman, a point of order.

Yesterday, I changed my schedule for today specifically because the Bloc Québécois had asked that the motion have precedence. We will settle this. We will not postpone it to the end of the meeting, whether there is a witness or not. You knew this yesterday. Therefore, we will prepare the motion today.

[The Chair, Conservative, Rick Dykstra]

Folks, we started out all happy this morning. We're going to stay happy because we have a witness here who is going to present, and we have the ministry folks here ready to present. I want to keep things moving along. Let's make sure we direct our comments through the chair.

Mr. Ménard, you'll have a chance to respond, if you like. I'm going to let Mr. Moore go first, and you'll have the final say on this, Mr. Ménard.

[Rob Moore, Conservative, Fundy Royal, NB]

When the minister appeared here specifically on this issue he said, and I'll read from the blues for all of us:

Of course I have carefully considered the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights in respect of the totality of these new dangerous offender reforms, and I am satisfied that they are fully constitutional. These measures have been carefully tailored to provide a prospective, targeted, and balanced response to the real and pressing problem posed by these dangerous offenders.

I leave that with the committee. That is in writing. They're the minister's words from the transcript of the committee. He has certified that they're constitutional, and going beyond that would be extremely unusual.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Moore.

Monsieur Ménard, you have the final say here.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I think what we are seeing here this morning is rather hypocritical. I remember very well that when the Conservatives were in opposition, they invoked the fact that we were elected, that we were parliamentarians, in order to have a right to all the information before voting.

What are we asking for? First of all, the minister is not a client. He is an elected official and is responsible for a department. Before voting on a bill, we have the responsibility of ensuring that we have all the information. Nine witnesses told us that this bill was not constitutional. I feel I am doing my job as a member of Parliament when I ask for information. If the minister appeared before us and said so, he should give it to us in writing.

Why do we not have faith in the word of members of Parliament? Ms. Jennings tabled an amendment saying that we would keep this information confidential. Is this not paid for with public funds? What is the point of voting on a bill like C-2 on accountability, on access to information, on transparency if you are not even able to give parliamentarians all the information they need? Is it unreasonable, as an elected official, to vote on a bill nine witnesses said was unconstitutional? Is it unreasonable to ask if this was investigated? If the minister said so, that is not enough. We need more information.

[An hon. member]

[Editor's Note: Inaudible]

[Réal Ménard, Bloc, Hochelaga, QC]

I was not finished. Calm down! I have the floor.

Mr. Chairman, if we do not have the information by Tuesday morning, I say to the government that we will table motions for adjournment. That is what we will do. We have the right to have that information. If you do not want to give it to us, we will table a motion to extend our deliberations so that the government can invite constitutionalists to come and meet with us. If we do not have the information we require, we will not vote on the bill.

When the Conservatives were the opposition, there was never enough information available. Today, they are trying to make us vote whereas we know that the bill is potentially unconstitutional. May I point out to you that yesterday, we were ready to extend the debate in order to move to the vote but it was the Conservatives who got up to leave.

Therefore, there is a limit to making a travesty of democracy, to being pharisees and philistines. There is no point on voting on bills like C-2 if we cannot give the information to parliamentarians. I regret, but we are not faced with a privileged relationship involving private practice, the minister, and cabinet. I expect officials who have knowledge of constitutional law, who provided opinions to the minister, who are not from the private sector, who are paid with public funds, to give us that information.

Mr. Chairman, let me conclude by stating that if we do not have something in writing guaranteeing the constitutionality of the bill by Tuesday, we will table motion for adjournment after motion for adjournment.

[The Chair, Conservative, Rick Dykstra]

Mr. Ménard, in terms of process, I'm reminding you that your motion is on the floor. If this motion carries, a request will be made to the department.

Having said that, we've had all of our speakers and I will now put the question.

We'll first vote on Ms. Jennings' amendment, which is “To provide on a confidential, in camera basis which protects “advice to the Minister”...in its possession...by Friday, November 16th, 2007, 3 pm.” I'm reading the bold type part of the amendment here.

We've been asked for a recorded vote.

(Amendment negatived [See Minutes of Proceedings])