The matters addressed in the notice of meeting are out of order for three reasons, and I've enumerated these in writing. I'd like to present these to you now.
Two of the reasons relate to the content of the letter that was sent to the clerk requesting the meeting and to the specific wording of the notice of meeting, as issued by the clerk, on your instruction, Mr. Chairman. The third reason relates to the sub judice convention. Relating to your earlier question, I do want to first state that I don't mean to suggest that the chair or the clerk acted in violation of the Standing Orders. I do mean to say that, nonetheless, the matter is out of order for reasons that I'll outline below.
We're here because notice of the meeting was issued in accordance with Standing Order 106(4). I'm advised that on the fifth, last Wednesday, the clerk received a letter signed by four members of the committee, formally requesting that an unscheduled meeting of the committee be convened. The chair, as required by the Standing Orders, then directed the clerk to formally issue the notice of meeting as quickly as reasonably possible--in fact, that was done later the same day--so that the requisite 48 hours' notice could be provided to all committee members.
Let me outline the first reason why the consideration of the matter as described in the notice of meeting is out of order.
Standing Order 106(4) requires that, “For the purposes of this section, the reasons for convening such a meeting shall be stated in the request.” Note that the language outlining the reasons for this meeting, as found within the letter to the clerk, and the substantive language as found within the notice of meeting are identical. It's obvious to me that the chair simply directed the clerk to use the exact phraseology found in the letter of request and not to take any editorial licence whatsoever with respect to the proposed reason for this so-called emergency meeting.
As identified by Marleau and Montpetit on page 843, the matter under consideration for today's meeting is simply to determine “whether or not the committee wishes to take up the requested subject, rather than deliberations on the subject itself.”
While there can be little question that the primary purpose of the meeting is to consider whether the committee wishes to engage in the study as suggested, I would submit to you that before any such discussion takes place, it's imperative for the chair to make a determination as to whether or not the content of the notice, as issued by the clerk, is in fact in order. If it's determined that the notice is not in order, then our committee would not even be in a position to engage in any discussion whatsoever regarding the possible study of the topic as requested by the four opposition members.
I want to make it clear that it's my position that the notice of meeting for this committee was not in order for a number of reasons.
To be honest, the reasons for convening the meeting, as indicated in both the letter to the clerk and as shown on the notice of meeting, are so deficient and so blatantly biased that any study along the lines requested by the letter would take this committee well outside its inherent jurisdiction and its mandate, as I'll outline to you in greater detail below. I've come to the conclusion that this committee is not in a position to commence any study on the topic as suggested by the four signatories to the letter calling for it to happen.
Due to the time limitations associated with the manner in which this committee was convened, I haven't had an opportunity to conduct a really thorough investigation of the rules of the committee and the relevant procedures in the House, but I am nonetheless sincere in my belief that there are at least three separate reasons why the overtly partisan and clearly ill-conceived rationale for this meeting aren't in order.
My first objection, which I'll now give, divides itself into two parts. The first of these two parts lies with the nature of the study that is being proposed and that is expressed in the notice of meeting. The relevant portion of the notice reads as follows: “looking into the allegations made against the Conservative Party of Canada's systematic attempt to defraud Elections Canada, as well as the Canadian taxpayer”.
Mr. Chairman, to the best of my knowledge, no such formal allegation has been made against the Conservative Party of Canada, save and except those made on September 5 by the members of the committee who requested this meeting and as found in their letter to the clerk. Unless I'm mistaken, I don't believe there's been any acknowledgement or claim of any wrongdoing. Rather, in fact, it is the local campaigns of the Conservative Party of Canada that are seeking formal redress by way of initiating court action against Elections Canada for its failure to provide reimbursement of election expenses that are legally due to them. It's not the other way around.
This brings me to a second observation, Mr. Chairman, the second logical part of my first point. Clearly there is significant disagreement regarding almost all of the material facts of this matter. On the one hand, we have a written statement from the members of this committee who asked for the meeting to be convened making allegations of unlawful activities. On the other hand, we have members of the Conservative Party, myself included, taking the opposite position, that all actions were appropriate and lawful, and that in fact the wrong has been done to the Conservative Party of Canada in this matter by Elections Canada.
Now, it's a well-established principle that neither parliamentary committees nor the Speaker of the House is in a position to determine questions of fact. Indeed, when disputes as to questions of fact have arisen in the House, the Speaker has consistently taken the position that he is simply not prepared to rule in favour of one member against another. Similarly, this committee is not a trier of fact and should not be expected to make any such determinations. A parliamentary committee can hardly be expected to be an unbiased or impartial body.
Furthermore, the rules of its operation and the limited questioning opportunities inherent in our rules of order simply do not allow for proper cross-examination or fact finding, as is customarily found within a judicial or a quasi-judicial entity. I'd suggest that we would all be in agreement with the statement that we are neither properly trained on this committee nor in a position to make any such determinations as to matters of fact. It's one of the basic tenets of parliamentary law that the Speaker, and by extension parliamentary committees, does not engage in such matters that would require him, them, or us to make such determinations of fact.
Now, let me turn to my second reason. I've given you the first reason in two parts. I turn to my second reason why this notice of meeting is not in order.
This is due to the fact that the manner in which it is worded would require the committee to make a finding in law. This deficiency, while relating to the earlier deficiency I've described, is even more evident in its existence and even more egregious in its operation.
I remind the committee that the rationale for this meeting relates to the supposed--again I'm quoting from the notice of motion--“systematic attempt to defraud” on the part of the Conservative Party of Canada. Again, I repeat, to date there's been no finding of any wrongdoing in the court, tribunal, panel, or board of inquiry, nor indeed any such allegation outside of this notice of motion.
Indeed, the members who requested this made their request in a way that protects them, through parliamentary privilege, because their letter to the clerk is a parliamentary paper. In other words, they haven't gone out and made the accusation of systematic attempts to defraud Elections Canada and Canadian taxpayers outside, where they're not protected by parliamentary privilege. I think that's an interesting observation, Mr. Chairman.
Accordingly, there has yet to be any indication that the Conservative Party of Canada is engaged in any wrongdoing that could possibly be construed as a systematic attempt to defraud. I'd go further and suggest that the pejorative and politically incendiary phrase “systematic attempt to defraud” has not been used by anyone other than the members of the opposition.
I don't think anyone here today would disagree with me when I suggest that in order for this committee to commence a study on a matter that has been explicitly described as a systematic attempt to defraud, there would first need to have been some finding somewhere that a law, statute, or regulation had been violated and that the Conservative Party of Canada's actions in connection with the 2006 federal election campaign could therefore, on some external basis outside of the allegation itself made by the members calling for this meeting, be construed as what they've described.
I think it's trite for me to suggest that this committee is not in a position to make any kind of legal ruling, to consider issues of legalities, or to make pronouncements as to the operational intricacies of legislation and regulations. The committee isn't a court. It's not a tribunal. Its personnel and its membership are not legally trained. I don't think we could be described as being entirely unbiased or non-partisan.
Finally, I'd suggest that no member of this committee has ever been a member of the judiciary. We simply don't have the legal authority to make such a study. This is unquestionably a matter for the courts to decide.
In that regard, it's important to note that at this time the matter is in fact before the courts as pleadings that have been filed and evidence that is scheduled to be filed later this year. But again, this is a proceeding of the Conservative Party of Canada against Elections Canada for the withholding of moneys that are due to the Conservative Party of Canada...and not this turning of the issue on its head that's been presented by the four members who called for this meeting to take place.
With respect to the inability and/or the lack of authority of this committee to make any legal rulings, Mr. Chair, I want to offer you the following Speaker's rulings, which I believe are relevant to the situation at hand.
First of all, on May 13, 2003, Mr. Speaker Milliken made the following ruling when he was asked to rule on a question of privilege raised by the honourable member for Yorkton—Melville regarding the transfer of ministerial powers, duties, and functions for the Firearms Act. The Speaker stated the following at page 6,124:
As my predecessors and I have pointed out in many previous rulings where legal interpretation is an issue, it is not within the Speaker's authority to rule or to decide on points of law.
He goes on to state, and I quote again:
It is clear that it is not your Speaker who might rule on the legality of the government's decision to transfer responsibility for the Firearms Act from one cabinet minister to another. That is a matter for the courts to decide. I must examine instead the hon. member's argument from a purely procedural perspective.
There was a similar ruling from Mr. Speaker Fraser on October 1, 1990, in a ruling regarding the government's appointment of a number of senators. The Speaker, in giving his ruling, stated the following at page 13,620. I quote again:
First, it is not for the Speaker of the House to rule on constitutional matters. It is not for the Speaker of the House to try to interpret at any given time different legal opinions that may be being expressed across the country.
And it's worth, as well, considering the ruling of Mr. Speaker Parent, made on February 16, 1995, in a matter that dealt with possible violations of the Privacy Act and a related complaint filed with the CRTC. This ruling is closely related to the matter at hand as the facts are, in many respects, quite similar. The Speaker, in making his ruling, stated the following, and I quote again:
It is not for me to decide whether or not, as the Deputy Prime Minister stated, the letter was part of the public record of the CRTC. The application of the Privacy Act and the laws and policies governing CRTC dossiers are beyond my purview. As my predecessors have repeatedly ruled, it is not now, nor has it ever been, the role of the Speaker to rule on questions of law. This has been a longstanding practice and I draw members' attention to Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, Fourth Edition, 1916 at page 180 which reads that
--and now I'm quoting within the quote from Bourinot--
the Speaker will not give a decision upon a constitutional question nor decide a question of law.
Mr. Chairman, when one considers this 1995 ruling and applies it to the matter at hand, the only material difference is that in our case we would be asked to determine whether or not there was a violation of one of the provisions of the Canada Elections Act, as opposed to a potential breach of the Privacy Act, as was the case in the matter before the Speaker in 1995.
And I have one last precedent, Mr. Chairman. On March 17, 1987, Mr. Speaker Fraser was asked to make a ruling on an issue relating to the Official Languages Act. The Speaker first cited Bourinot, page 180, which states that the Speaker “will not give a decision upon a constitutional question, nor decide a question of law”.
The Speaker went on to consider the matter and made the following clear and concise statement--and now I'm quoting from Mr. Speaker Fraser himself. He said that whether or not the act applies is a legal issue which the courts should decide, not the Speaker.
The position taken by the Speaker in such matters is quite clear, and I suggest that this committee, like the Speaker, cannot be expected to make findings of law and, indeed, is not authorized to make findings of law. Therefore, any matter of study that would require the committee to do these things is not in order and therefore should not be permitted to proceed any further.
As indicated by the pleadings as filed by the official agents of the Conservative candidates as the plaintiffs in the action currently before the courts, which are now part of the public record, the representatives of the plaintiffs have taken the position that they did not act in violation of any act. At all times the actions of the Conservative Party were in full compliance with the Canada Elections Act, but until such time as a judge reviews the evidence and hears from the parties, there has been no finding of wrongdoing or illegality, as asserted in the orders of the day.
Most certainly there has yet to be any finding, or indeed any hint, that anybody is seeking to find or expects to find or is alleging that there exists any systematic attempt to defraud--to use, again, the language of the orders of the day. For this committee to engage in this study at this time would be to act as a trier of both fact and law, unquestionably something that we are not in a position to undertake.
As I suggested earlier, there is little question that this committee does not have the training, the facilities, or the ability to conduct the kind of examination necessary to arrive at a finding of any kind. Clearly such an examination is well outside the mandate and jurisdiction of this committee, and I can only assume that this was known by the opposition members when they filed their letter with the clerk.
For these two reasons, I respectfully submit that the notice of motion is not in order. Either of the two reasons I've given, frankly, is sufficient for the chair to request that the members of the opposition prepare and file another request with the clerk, but this time make a sincere effort to be less partisan and prejudicial in their request so that this committee can engage in real and meaningful work.
I fully understand and appreciate the appeal of trying to score political points with the media, but by doing so, the members of the opposition are moving outside what is in order.
So I turn now to the third and what I believe to be the most compelling reason that this study is not in order, and that's that the stated reasons for such a study would be in conflict with the sub judice convention that has been part of parliamentary practice since the time of Confederation in this country and, of course, has been a part of British parliamentary practice a good deal longer than that. As was indicated earlier, litigation is currently before the courts with respect to this matter, and more precisely--and I repeat this point again--the local Conservative campaigns are presently suing Elections Canada for not providing the proper refunds for several candidates with respect to their election expenses. Therefore, any examination into this matter would violate the sub judice convention.
