Procedure and House Affairs Committee on Nov. 4th, 2014

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

I'll make it brief, then.

I agree with Mr. Scott's reasoning behind this and the watertight example that he gives. Obviously with someone being treated...as the seat remains vacant so therefore it gets around the idea of someone just up and quitting and avoiding prosecution.... I totally agree. I can read between the lines and I know who we're talking about here, but I still agree that this is the thing to do.

My only concern deals with, and correct me if I'm wrong.... This is more for clarification with Mr. Scott. “The Senate or the House of Commons adopts a motion declaring....” I'm a little leery about adopting a motion where we put ourselves in the realm of the majority rules. Is that how you see this working?

[Craig Scott, NDP, Toronto—Danforth, ON]

The answer is yes, and that is also already how the act works when it comes to expulsion.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Right, okay, that's all. I just wanted clarification.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Yes, well quite frankly, the difficulty I have with this is that it negates Government-1. I'll be quite honest with you. We think the amendment we put forward is probably the correct way to go—strike probably; we believe it is the right way to go. It expands the list of offences from what Mr. Williamson had originally proposed and eliminates the sentencing provisions. The reason I put that out and why I think that's important is because sentencing is somewhat arbitrary and depends on what judge you appear before. In other words, two people could be convicted of the same offence, and one judge gives the convicted 18 months, and the other one gives 24 months for the same offence. One, then, would be caught by this legislation and the other would not.

Or, there's the case of someone who engages in plea bargaining to make sure that they're just under that two-year window. If they are successful in plea bargaining down to one year and 364 days, they're not caught by the provisions of this. We believe that it's the offence that one is convicted of that should probably be the most important consideration in determining whether or not someone loses their pension benefits. That's why we brought forward G-1, and since it would be negated—I appreciate the argument that Craig has put forward—we're going to be standing by our amendment.

[The Chair, Conservative, Joe Preston]

Mr. Christopherson, on NDP-3.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks, Chair.

I'm having a little trouble understanding the government's position, so rather than my being argumentative, help me understand. This has been complex all along the way; everybody acknowledges that, so let's move cautiously. The purpose was to eliminate what was perceived as a loophole: that right now, if you're expelled, your pension is on the line if you meet the right circumstances. If you resign before you're expelled, you get to keep your pension. The purpose of the bill, originally, was to close that loophole. Our amendment has tied that action to the expulsion, which seems to be the most logical, common-sense, and easiest approach that leaves the least amount of leeway for error, if you will.

I remember when we started having discussions about going down the road the government is talking about, we got into the weeds big time. We got advice from legal experts who were saying, “You're going to run into problems if you're going this way; you're not going to line up with an alignment or a match the way you want.”

I'm having some trouble understanding why the government, notwithstanding pride of ownership, wouldn't agree with the simplest approach that effectively deals with the very basic purpose that the bill was originally brought in to do.

Through you, Chair, before I relinquish the floor, I would ask Mr. Lukiwski to help me understand why we go the complex way rather than the straightforward, simple way.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

You're right, without question, David, this has been complex. It's been interesting; it's been a discussion we've had, and we've had many points of view on it. At the end of the day, our considered opinion—I say ours because I'm using the collective here—is that this would be the best way to go. With respect to the loophole, the clause talks about if a member ceases to or has ceased to be a member and who is convicted. It captures someone, perhaps, who has resigned. It takes care of that loophole; that's just the wording of this.

On the point of the convictions themselves, the current bill, or the original bill as proposed by Mr. Williamson, refers to any parliamentarian who is convicted of an indictable offence under any act of Parliament that carries a maximum prison sentence of such and such, of two years or more, regardless of the actual sentence imposed. It refers to just the offence carrying a maximum of over two years, if that offence was related to criminal conduct, etc. We're saying that there should be specificity when it comes to the types of offences the parliamentarian has been convicted of, regardless of what the sentence is, whether he's sitting now or ceased to be sitting because he resigned six months ago, if he's convicted.

[David Christopherson, NDP, Hamilton Centre, ON]

But you mean convicted only of the charges that you have listed—

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

That's correct.

[David Christopherson, NDP, Hamilton Centre, ON]

—whereas, tying it to the expulsion....

We can't help it—this is going to be tied to some degree to the instant case and the matter that's before us. It's unfortunate, to some degree, because we were trying to do this in the absence of exactly that, but we are where we are.

I'm not sure that the instant case would be captured, and yet if we go with the proposal we've made under Mr. Scott's name, we would capture it, because it would tie directly to the one penalty right now that takes away the pension—which is one of the biggest hits you can make to someone—and that is the expulsion. If resigning avoids the expulsion, the easiest way to close the loophole is to just tie it to the expulsion. If there are the same standards, whether they resign or not, if they would have been expelled, then we would have achieved the goal.

The method the government is bringing in leaves a loophole that obviously is fairly big, because the instant case in front of us may indeed be one of those. So I'm having some trouble understanding, from a non-political—capital-P political—partisan basis why the government is going this way. I'm trying to avoid—

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I understand.

[David Christopherson, NDP, Hamilton Centre, ON]

—making the allegation of the obvious, which is kind of lying there, and if I need to circle back to it, I will. It's really troubling that we're not going the easiest, simplest way and that we're going in another direction so that unfortunately one could make a case to say, “Well, this is a taking-care-of-buddies kind of world” and that is hugely problematic—

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Could I have a chance to respond?

We're in public, so it doesn't really matter, but when you say you have something you may loop back to, which you are avoiding discussing, you're talking about the Del Mastro situation.

I appreciate the fact that you're showing some sensitivity to this, David. I really do. I think your inference was that you hoped the government wasn't trying to do something in this bill that would perhaps protect Mr. Del Mastro. That is not the case. I'll say that publicly, and I think it's going to be demonstrated probably in very short order. I believe this committee doesn't know this, because it's in the Speaker's hands, but it will come to us if the Speaker finds a prima facie case. I can assure you that this does not have anything to do with the Dean Del Mastro case.

I understand you have some difficulties with it, and that's fine. We can deal with those, but it is not tied to that in any shape or form. You have my word on that.

[The Chair, Conservative, Joe Preston]

I have Mr. Scott, then Mr. Simms, and then Madame Latendresse on this clause.

[Craig Scott, NDP, Toronto—Danforth, ON]

If my motion goes down, and it seems it will, we could come back and be discussing amendment G-1, but I think it's important now to note here two things about amendment G-1. First is that Mr. Williamson's original bill did not limit the offences to the Criminal Code. This is limited to the Criminal Code. For example, the section of the Elections Act dealing with offences that are unlawful practices or corrupt practices—and one of the things Mr. Del Mastro has been convicted of, for example, is categorized as an unlawful practice—would not be caught by this.

The second thing is that the wording in amendment G-1 does change something from Mr. Williamson's bill.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Sorry, was that one of Mr. Del Mastro's practices or all of Mr. Del Mastro's practices?

[Craig Scott, NDP, Toronto—Danforth, ON]

I should have said, “at least one”, because I'm not following what all of the charges were, but at least one was an unlawful practice.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

So you're not sure whether this would put him outside the purview of this legislation.

[Craig Scott, NDP, Toronto—Danforth, ON]

It would—

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

It could be entirely outside the legislation.

[Craig Scott, NDP, Toronto—Danforth, ON]

It could be that under Mr. Williamson's legislation the maximum penalty he would face is one year, under any of those. Even if it's called an unlawful practice, Mr. Williamson's bill might not catch him at all anyway.

But this is adding to the element about why he wouldn't be caught, because Mr. Williamson's bill included the Elections Act, because it included all statutes. This only includes the Criminal Code. The Elections Act strikes me as going to the heart of some of the trust issues that all of these Criminal Code offences seem to touch on. That's the first thing.

The second thing is, this now removes the element of retrospectivity that we heard an expert witness say would not be a problem in this context, because it's attaching civil consequences to something that would have been a crime before. Amendment G-1 says “ceases or has ceased to be a member and who is convicted on or after the day on which the subsection comes into force”. That was not language that was in Mr. Williamson's. The “on or after” is new, and it means that any conviction before this bill comes into effect wouldn't be caught; you could resign and be safe under this.

It's not as expansive as what Mr. Williamson wanted and it's not what we heard from expert witnesses, saying that there's no constitutional problem; the witness also suggested that there is not a huge unfairness problem.

There are three elements. Let me summarize.

Mr. Williamson's bill would not catch Mr. Del Mastro, to the extent that it set a maximum two-year penalty as potential. So already it seemed not to catch that situation, which is odd, given what Mr. Williamson was trying to achieve. Secondly, this would create another reason that Mr. Del Mastro would not be caught, because it's only concerning the Criminal Code. And he would not be caught, if you understand that he has been convicted before the act comes into force. So there are three reasons.

That's why I continue to think, going back to the motion, that our amendment is the cleanest and the most principled. It follows the structure of the act, it uses exactly the same mechanism, and it doesn't get us into advanced line-drawing about what does and doesn't merit this kind of sanction, because if by definition the House decides that somebody should be expelled, that's the existing logic of the act.

If you were to resign in order to avoid that logic, surely you should be caught by the logic. That just seems to be what Mr. Williamson's bill was all about.

That's why I continue to insist that this is the best amendment.

[The Chair, Conservative, Joe Preston]

Mr. Simms.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

At the risk of sounding repetitive—but I guess this should be on the record—I think Mr. Scott's point is right. The spirit of the original act itself certainly illustrates throughout this about the offences caught here.

I guess basically we're arguing two amendments at once. All the offences as listed by amendment G-1, and there are many other offences that I looked here at that are omitted, seem to me to go against the spirit of what the original act was meant to do—by way of illustration, as Mr. Scott and others brought up, and as I've noticed throughout this: fraud over $5,000, and you name it.

I'm not a lawyer, but by way of clarification, regarding Mr. Del Mastro the original bill says “prosecuted by indictment”. Wasn't Mr. Del Mastro involved in a summary conviction, so that he therefore would have been outside of this regardless?

We're not talking about the specific case.

[The Chair, Conservative, Joe Preston]

I'm going to get you to that one right now too, folks.

Let's not try to tie this legislation to any other piece or other study that this committee may be faced with. I think that too will be well done by this committee when it happens, but let's not try to find an example that fits this case. Let's find this to be good legislation in its own right.

Mr. Simms, are you finished or not?