Finance Committee on May 18th, 2016

[The Chair, Liberal, Wayne Easter]

Okay.

[Steven MacKinnon, Liberal, Gatineau, QC]

Lisa Raitt's question, or Ron's question was first.

[The Chair, Liberal, Wayne Easter]

Yes.

When Mr. Liepert comes down, we may have to call you officials back.

We'll go to Mr. Caron's question with different officials.

We have Mr. Recker and Ms. Hassan.

Go ahead, Mr. Caron.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Thank you very much.

The answer to my question may not take a lot of time, but I still need to get clarifications on the repealing of the Federal Balanced Budget Act.

The question I put to the official who was here last time, Mr. Recker, was about the intention to repeal a piece of legislation. The repeal clause is worded simply and only takes up a paragraph: “The Federal Balanced Budget Act, section 41 of chapter 36 of the Statutes of Canada, 2015, is deemed never to have come into force and is repealed.”

Is the act currently in force?

[Sandra Hassan, Assistant Deputy Minister, Central Agencies Portfolio, Department of Justice]

The Federal Balanced Budget Act is currently in force.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Okay.

Could you tell me, in your own words, about the consequences of the act, especially as of June 1, 2016.

[Sandra Hassan]

The act currently stipulates that, if a deficit is forecast in a budget owing to a recession, certain measures will take effect in the fiscal year subsequent to the year during which the recession comes to an end. A recession occurred in 2015-2016, and it ended in the same year. The act, as currently worded, stipulates that the measures will take effect in 2016-2017.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

When you say fiscal year, you mean the year starting on April 1.

[Sandra Hassan]

Yes, the act stipulates that the measures will take effect on the first day of the fiscal year—April 1, 2016, in this case.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

We can say that, given the current wording of the Federal Balanced Budget Act, the government has responsibilities as a result of its application.

[Sandra Hassan]

I think the answer is nuanced. What we have before us is a provision. The government made the decision to submit to Parliament the legislative provision to repeal the Federal Balanced Budget Act. The answer has to be nuanced, as we have to take that provision into consideration. There is a discrepancy between the provision currently being studied by Parliament and the legislation as it will be once the provision is adopted. If and when Parliament adopts clause 79 of the Budget Implementation Act, it will have never violated the Federal Balanced Budget Act, as this legislation will be retroactively deemed never to have been in force.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

That's exactly my point. In the current circumstances, the government is breaking its own law. It is deciding to repeal the Federal Balanced Budget Act retroactively. The act is applicable now, but once the provision is adopted, it will never have been applicable, as if by magic.

Is it common practice to retroactively repeal a piece of legislation the government itself is violating? Has that been done often in the last 10, 20 or 30 years? The government is currently violating a piece of legislation and is exempting itself from that offence.

I want to clarify that I'm not especially fond of the Federal Balanced Budget Act. For me....

[Steven MacKinnon, Liberal, Gatineau, QC]

Ah....

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

I'd like not to be interrupted while I'm talking.

What matters to me is the principle. The government is ignoring a legal obligation by simply legislating to be exempted from it.

[Sandra Hassan]

I cannot talk about the last 10 or 20 years. I can't go that far back.

However, I can tell you that there have been other examples. You asked the question at a previous meeting. I should point out that this approach was not invented under the current Budget Implementation Act. In fact, the technique whereby a piece of legislation or a provision is repealed and deemed never to have come into force has been used before. I have even been given a list of provisions for which that technique has been used. It is actually also used elsewhere in the bill for certain tax provisions.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Yes, but there is a difference between repealing tax provisions and the fact that the government is violating a piece of legislation it enacted. I'm not talking about the current government, but about the Government of Canada in general.

[François-Philippe Champagne, Liberal, Saint-Maurice—Champlain, QC]

[Inaudible]

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Please don't interrupt me. Thank you.

A precedent is not really being set. That was done in other cases. However, I think it is inherently problematic for the government to exempt itself from obligations it should fulfill, under an existing piece of legislation, by saying that the legislation had never existed.

It is one thing to use that technique to change tax provisions. However, I have serious issues with enabling the government to say that something is ultimately an offence, but then to decide that it will no longer be one. I am really bothered by this kind of a provision, especially under a rule of law where the government's powers must be somewhat limited.

[Sandra Hassan]

As a lawyer, I can tell you that the Parliament of Canada is sovereign and that, should it adopt clause 79, once the bill receives royal assent, the Federal Balanced Budget Act will no longer have the force of law and will even be deemed never to have had it.

I understand your discomfort. However, as soon as the bill receives royal assent, any violation of the Federal Balanced Budget Act committed while the legislation was in force will be deemed never to have been committed.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

In conclusion, we have a piece of legislation that exists and is applied, but the royal assent will magically result in the legislation never having existed and never having been applied.

I would like to point out that this is the second time in six months that the government has used such a measure. The first time was to exempt itself from its obligations; the second time was to enable Air Canada to exempt itself from its obligations. I see a dangerous trend here.

Thank you very much.

[The Chair, Liberal, Wayne Easter]

Mr. Champagne, just for members' information we are on part 4, division 1. The Justice officials here have been informed by other people who had questions for Justice that those questions were answered both in your statement and the exchange.

Does anybody else have any questions for Justice?

Then you're free to go. Thank you very much for coming. We won't hold you any longer.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Justice was served.

[Voices]

Oh, oh!

[The Chair, Liberal, Wayne Easter]

Justice was served.

Mr. Champagne, you have a question for Ms. Hassan.

[François-Philippe Champagne, Liberal, Saint-Maurice—Champlain, QC]

I would first like to officially apologize for interrupting my colleague Mr. Caron, for whom I have a great deal of respect. I'm sorry.

As a lawyer, I would like to ask some questions. My colleague Mr. Caron mentioned certain practices. Since you are a lawyer at the Department of Justice, we will talk about law.

Is every Parliament indeed sovereign?