Thank you, sir.
Evidence of meeting #62 for Procedure and House Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was chair.
A recording is available from Parliament.
Evidence of meeting #62 for Procedure and House Affairs in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was chair.
A recording is available from Parliament.
3:45 p.m.
Conservative
The Chair Conservative Gary Goodyear
That way we can get it to printing before 4 o'clock.
So we're back to my original comment.
I received this letter probably 20 or 25 minutes ago. It's addressed to the Standing Committee on Procedure and House Affairs:
Dear. Dr. Goodyear:
I acknowledge receipt of your letter of today in which you inform me of a unanimous motion of the Committee calling upon Elections Canada to reverse its decision to allow veiled voting.
As I indicated in my press conference yesterday (a transcript of which is attached), the Canada Elections Act provides several ways of voting that do not require the visual comparison of an elector with a photograph. Consequently, in those cases, the choice to unveil is that of the elector. This result flows not from a decision on my part but from the Act as recently adopted by Parliament.
I would be pleased to appear before the Committee at your convenience to further discuss the requirements of the Act in this regard and the reasons why I believe an adaptation would not be justified at this time.
My interpretation of the letter is that it's a direct “no” to the motion. As a result of that, the committee has said that we will call Mr. Mayrand to this committee to comment.
We'll get you copies as soon as we can.
3:45 p.m.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
On a point of order, Mr. Chair, for clarification, Mr. Preston's motion is now considered to be active because the condition that we attached to its elimination has not be met. So we, as a committee, are pursuing a study of the issue of veiled voting to be reported on this week. Our members will be submitting a list of witnesses we would like to see available for testimony before this committee, and before week's end, so we can complete our report.
3:45 p.m.
Conservative
The Chair Conservative Gary Goodyear
We can probably deal with this at the end, but that would be the intent, that we would get our witnesses and plan together after that.
Okay? Are there any other concerns on that matter?
All right, I'm ready to deliver my ruling, as I asked for some time to do that. Let me just read from the letter. I apologize that I don't have copies. I will read slowly, and hopefully clearly, so our translators can do their jobs, and we will get copies to you:
On September 5th, a request was filed with the Clerk of the Committee by 4 members asking that the Procedure and House Affairs Committee meet to discuss undertaking a study into “allegations made against the Conservative Party of Canada's systematic attempt to defraud Elections Canada, as well the Canadian taxpayer, in relation to the 2006 federal election”. A meeting of the committee was convened on September 10 to consider this request.
During the meeting, Mr. Reid raised a point of order asking the Chair to rule the notice of meeting out of order essentially on 2 grounds: one procedural, one substantive.
Yesterday, after the point of order was stated and the debate that followed, I announced that I would reserve my judgment until 3:30 p.m. today. While Members may feel that it has caused some inconvenience and created some difficulties for those who were required to travel to Ottawa and attend the meeting, I, as the Chair of this Committee, must be satisfied that my judgments are made on a sound footing which respects the principles of parliamentary procedure. This is particularly so where a matter raises important issues of precedent, where the subject matter of the business before the Committee can have broad implications, and where the issue presented is [of] such complexity that a reasonable period of deliberation is necessary.In support [of] my decision to reserve judgment ...the authorities cited in Marleau & Montpetit, House of Commons Procedures and Practice, at page 857...state that: “In doubtful or unprovided cases, the Chair may reserve his or her decision.” Marleau & Montpetit also cite as a precedent a decision rendered by the chairman of the Standing Committee on National Resources and Public Works on November 27, 1979, where the chairman stated that he had reserved his judgment on a proposed motion “that caused some difficulty for the Chair as to its acceptability”. My decision to reserve judgment until this afternoon was consistent with the precedents found in Marleau and Montpetit.
In making my ruling I would like to make a distinction between whether the notice is proper and whether the Committee may look into the subject matter raised in the request. I note that Mr. Reid made detailed and cogent submissions on the question and I intend to respond to them carefully and in a considered manner given the importance of the issues raised: balancing the ability for parliamentarians to review and examine issues of public importance versus respecting the independence of the judiciary and the separation of powers between branches of government.
Mr. Reid makes essentially two arguments:
a) That the notice of meeting is out of order because, as worded, it would lead the Committee to a discussion that is beyond its mandate.
b) The proposed subject matter of any study the Committee undertakes on this issue would necessarily engage the sub judice convention. ...
On the first argument, I would note that Standing Order 106 states that:
(4) Within five days of the receipt, by the clerk of a standing committee, of a request signed by any four members of the said committee, the Chair of the said committee shall convene such a meeting provided that forty-eight hours' notice is given of the meeting. For the purposes of this section, the reasons for convening such a meeting shall be stated in the request.
The only requirement of the standing order is to state the reasons for convening a meeting in the request. While most would probably view the reasons outlined in the request of September 5 as somewhat partisan, or even inflammatory, these are essentially matters of debate. My only consideration as Chair is whether or not the subject matter falls within the mandate of the Committee and, as such, could be the subject of a study should the Committee choose to commence one after discussing the request.
I would note that the mandate of the Standing Committee on Procedure and House Affairs includes, as stated in S.O. 108(3)(a)(vi): “the review of and report on all matters relating to the election of Members to the House of Commons”, which, I am sure you will agree, is a fairly broad mandate.
Whether or not it is appropriate for the Committee to examine a particular case within this broad mandate is
the focus of consideration and the point of order by Mr. Reid. In fact, Mr. Reid has offered a number of opinions to support his own that, given the specific phraseology, it is not only partisan politics but it is out of order. Mr. Reid raises objections that no such allegations have been made and no such fraud has occurred and this is therefore the reason for ruling it out of order.
Within my research last evening and today, as well as discussions between our analysts and clerks, and indeed a lengthy meeting—and I would like to thank Mr. Walsh for being at our disposal during that, and I appreciate that he was able to come and help us on such short notice--we reviewed all the facts of the argument, and given all of this, I have found that there is no truth in the wording of the letter for the intended motion.
Mr. Reid's second argument...involves the sub judice convention.
The sub judice convention is an unwritten convention whereby the House and its Committees voluntarily refrain from discussing matters that are before the courts. The convention has two aims: to protect the parties in a legal dispute from any prejudicial effect that could result from a public discussion of the issue by parliamentarians, and to maintain a separation and mutual respect between legislative and judicial branches of government.
As my colleague Mr. Schellenberger, Chair of the Standing Committee on Canadian Heritage, noted during that committee's meeting of December 6, 2006:
“House of Commons Procedure and Practice on page 534 states that, 'The sub judice convention is first and foremost a voluntary restraint on the part of the House....' Members of Parliament may therefore decide to exercise a certain degree of restraint when considering matters that are before the courts. While members are free to go about their business freely and without interference, they are also reminded to take into consideration the role of the courts. Accordingly, members and the committee may choose not to do or say things that would prejudice any legal or quasi-judicial proceedings.”
I feel it is my duty and responsibility as Chair of the Committee to counsel and caution the Committee members on the application of the sub judice convention as it relates to this case.
I am very concerned about the potential of prejudicing the rights of individuals who may become the subject or who currently are the subject of an investigation into wrongdoing under the Canada Elections Act or who are parties to a legal action involving Elections Canada. I would not want any study by the Committee into broader issues surrounding electoral advertising and financing to become a parallel judicial investigation. If members of the Committee chose to undertake a study concerning these issues, I would encourage them not to focus on the particulars of any specific case, but rather to limit themselves to a discussion of the broader policy issues. This would ensure that any ongoing or future legal actions would not be affected by the work of the Committee.
Having said that, I have some concerns that no one should be able to thwart or impede the rights of members to probe and investigate an issue by the simple filing of a writ. I will use Mr. Walsh's own term that we must, in our course, find the balance between interference with the process of Parliament and the right to independent legal process within the courts. In other words, we can't, as a Parliament, be held up by folks who simply want to file writ in order to shut up parliamentarians and our rights.
This brings me to Mr. Reid's point on finding fact. Mr. Reid cites, and I quote:
...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...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...to make such determinations of fact.
As an analogy
—and once again, I wish to thank Mr. Walsh for his input—
I would note that the Standing Committee on Justice and Human Rights is fully able to undertake studies into matters concerning the Criminal Code. It does not [however, have authority or a reason to] examine particular criminal cases or make attempts to determine facts in...criminal cases.
That's up to the courts.
While Parliament may create, change, add to, or subtract from the current Criminal Code, it is not Parliament's role to determine if Mr. Smith—and I'm using that name as just a word—has violated the code. That is up to the judiciary system.
In conclusion then, I believe that the notice for yesterday's meeting was in order and that the discussions on matters raised in the request to have the meeting, made in the September 5 letter, are in order. I would, however, urge committee members to refocus the debate and encourage them to realign the terms of reference in order to fit within the committee's mandate and consider the parameters of sub judice. I do, however, find the motion, or intended motion, as written, given its specificity and defined terms of reference, to be out of order.
I want to say that it is unfortunate that certain members of this Committee have chosen to use the processes of the PROC and the forum it provides for purely partisan political advantage. This is simply not in keeping with the spirit of cooperation and collegiality that we have worked hard to achieve in this Committee, a spirit that has served us well in shepherding important legislation to reform the Canada Elections Act and countless other issues.
That's my ruling. I find the motion out of order.
4 p.m.
Liberal
Marcel Proulx Liberal Hull—Aylmer, QC
Mr. Chair, I challenge your decision, if I may, and as you explained to us yesterday, this is not debatable.
4 p.m.
Conservative
The Chair Conservative Gary Goodyear
That's correct.
We have a motion on the floor, I'm assuming. You are challenging. Could I have that in the words of a motion--that the decision of the chair be put aside?
4 p.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Lennox and Addington, ON
Yes, sorry, I just want it to be recorded.
4 p.m.
Conservative
The Chair Conservative Gary Goodyear
Okay, we'll have a recorded vote.
Colleagues, we have a motion on the table that my ruling be sustained.
4 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
Chair, on a point of order, Mr. Reid said that we're having a recorded vote or a not recorded vote?
4 p.m.
Conservative
The Chair Conservative Gary Goodyear
We're having a recorded vote. That's what Mr. Reid asked for. So the clerk will read the names.
Actually, how about letting the clerk explain it, and then we'll have a recorded vote.
September 11th, 2007 / 4 p.m.
The Clerk of the Committee Ms. Miriam Burke
The motion is that the chair's ruling be sustained.
4 p.m.
The Clerk
Yes, be sustained. You express it in the positive.
(Ruling of the chair overturned: nays, 7; yeas 4)
4 p.m.
Conservative
4 p.m.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Yes, I'd like to put forward an amendment to the motion that we have before us. If you're prepared, I can read the text right now.
4 p.m.
Liberal
Marcel Proulx Liberal Hull—Aylmer, QC
I'm sorry, I'm just asking for clarification. How can he put--
4 p.m.
Some hon. members
Is this a point of order?