Procedure and House Affairs Committee on Feb. 26th, 2015

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

Okay, thanks.

This last question would be one of general legal philosophy. It's the kind of question that Senate committees often ask judges in the U.S. Do you have a particular philosophy of how you view your role in this context as a legal adviser where, let's be frank about it, you have to be faithful to the law, but you'll be operating in a context that's very new to you, and also it can be quite politicized in areas where the received law can be very unclear, too?

The Speaker is constantly, ever since I've arrived, having to work between what looked to be precedents and where precedents constantly seem to run out. Do you have a sense of how you interpret and advise on the law in light of the question of precedents and black letter law not necessarily in and of themselves dealing with the issues and from where does one draw the rest of the solution when you're advising? How would you explain your role?

[Philippe Dufresne]

Well, in my career I've found that often the very challenging legal issues, and certainly the ones that tended to go all the way to the Supreme Court, which is where most of my advocacy was, were questions where there's no clear legal answer. There may not be one single legal answer. Indeed, administrative law, which is another field that I was involved in, recognizes that and says that oftentimes you'll apply a test of reasonableness because you accept that there's more than one answer. And so you look at who gets to have the last word.

I think, faced with those types of uncertainties, I would look first to Parliament's intent. If we're looking at laws, if we're looking at statutes, what was the intent behind this legislation? What did the lawmakers want? What's the purpose of the statute?

If there's still some clarity at that point, then you look at the purpose of the whole scheme, and as between interpretations, which ones do you put forward? Which one serves the purpose, the mission, of the institution, in this case the House of Commons, the members, and privilege?

There will be some areas where you have to say that there is no law, that there is no legal answer, and then it becomes a policy question or a political question. I think in some cases it's appropriate to say that the law leaves options open, and it's for policy-makers to choose between options that are available to them. The law will not always say that there's only one answer.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Scott.

Mr. Lamoureux, please, for seven minutes, or thereabouts, apparently.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you. I don't even know if I'll go the full seven minutes, Mr. Chair, but I appreciate the gesture.

First and foremost, Mr. Dufresne, allow me to make it unanimous in terms of congratulations to you in filling this very important and vital role for an important institution. It's great to see you here this morning, albeit I understand that you've already been at the job for a couple of weeks now, and it's the third week in. I'm sure you will excel in it.

I've been looking over your bio. It's quite impressive.

There was an aspect that interested me when you made reference to the fact that throughout your career you've dealt with constitutional law. I'm often afforded the opportunity to comment on a number of pieces of legislation that come before the House, where there's always a bit of a contradiction. Sometimes we'll get a minister who will bring forward legislation and say that before it arrives they've already had some sort of assessment done on the legislation and it appears to meet the Constitution. Then we'll hear others say that it is not going to pass the Constitution and that it will be struck down and so forth. For the layperson, including myself to a certain degree, I think it sends a confusing message.

I'm interested in your take on legislation, constitutionality, how it comes through, and so forth.

[Philippe Dufresne]

I've had the privilege of being involved in cases where the constitutionality of legislation was an issue, particularly the Canadian Human Rights Act in the context of freedom of expression and also the separation of powers. Indeed, in the Pankiw case, there were questions as well about freedom of expression and whether applying the Canadian Human Rights Act to the sending of householders would infringe on freedom of expression.

The dilemma you point to is a situation where you have some views that are expressed by legislators or the executive branch about a bill being constitutional, then disagreements as to whether that's right, and ultimately and potentially, legal challenges. I think that's a reality in our system. We have the charter and then we have the Constitution generally, which provides that if legislation is inconsistent with those fundamental principles, it may be challenged and it may be quashed, as the case may be, by courts.

You will often have that situation where, until you have a decision of the court, you won't know for sure what the outcome is. Certainly, in those cases on constitutionality and the charter, a big part of that is often the justification of any infringement. It's up to the crown to bring forward that evidence in front of the courts to say that there was an important objective, and the measure is linked to that objective, and it's also proportional in that it's the least intrusive way that we could find.

It's difficult to know with 100% certainty how the court will assess that evidence and how they will come to a decision, so what you describe is, I think, a consequence of a system where ultimately those questions can be and are adjudicated by courts after they've been adopted.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

You'll provide reports and so forth, and you'll be consulted by members. Here is a bit of a hypothetical situation, so don't feel that you have to answer. Let's say that something came across your desk and you looked at it and said that upon reflection.... There are always different variances on how constitutional something is. There are debatable discussions and so forth.

There's a huge grey area, no doubt, but when you have a situation where it would appear to be fairly clear in your mind, how would you express something of that nature? Outside of saying, “No, this is bad legislation”, because you want to play that role of neutrality, how would you see yourself addressing something where your inside assessment is pretty strong in terms of how it wouldn't meet the Constitution?

[Philippe Dufresne]

I think a big part of the law clerk's mandate is to support members in drafting private members' bills. We have great, talented legislative drafters in my office.

I see these things coming up in discussions with the relevant MP who is looking to present a private member's bill and in talking about the format of the bill and how you achieve it. In terms of flagging any legal issues, I think that exchange and discussion could take place in that forum and hopefully would assist in the drafting process.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I've actually been a parliamentarian for many years but a member of Parliament for only four years. One of the things that I learned, more so here than in the Manitoba legislature, is about privilege. I always thought the most significant privilege an elected official had was the ability to communicate, to say what he or she really wants to say inside the chamber, but not outside the chamber. You can always risk saying it outside the chamber, but there's a privilege that's there. When we come to Ottawa, we find out that there are all sorts of other privileges that MPs have.

I'm wondering if you could provide your perspective on what you think are the most important privileges that an individual member of Parliament has.

[Philippe Dufresne]

I would hesitate to provide a hierarchy of the privileges. I think that they're all fundamentally important. You may have a situation where one is needed more than another. Sometimes, perhaps, the word “privilege” is not the right word, because it sounds like something that you get that puts you in a better position, and so on. Fundamentally, it's about allowing members and the institution to do their job and to fulfill the critical role in our parliamentary democracy. Certainly, the freedom of speech in the chamber is of fundamental importance, because it allows debate and the freedom to express your view, as is control over the proceedings and the access to the members, and so on....

Again, I would hesitate to put one above the other, because they all have been in existence for many years and under the necessity test, and by definition, I would see them as important.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Again, congratulations on your appointment and I wish you the very best in the years ahead.

Thank you, Mr. Chair.

[The Chair, Conservative, Joe Preston]

Thank you.

I'll go to Mr. Lukiwski.

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

Thank you, again. I'll try to be brief on this.

I don't want to put you in unfair or awkward position. You're undoubtedly aware that over the past few months there have been some situations in Parliament where there have been allegations of harassment, some between members, some between members and staff. We're in a unique situation here, obviously, and I don't think we need to brief you on exactly the uniqueness that you have. I don't think it would be appropriate, number one, and I'm not going to put you in an unfair position by asking you to offer an opinion on some of the things that you have heard about, unless you care to offer one.

I would ask you, do you think that your work on harassment issues, generally, would give you a perspective that would be able to assist us as we grapple with these questions here in Parliament? As an example, Mr. Preston is the chair of a subcommittee that has been established to deal with any harassment in the workplace. I know that's a difficult subcommittee. Even though I'm not on it, I empathize with the people who are.

If you could, sir, perhaps you could give us a few comments on the perspective that you have gained over the years in your dealings on harassment and what that might be able to lend itself to assisting us with harassment issues here in Parliament.

[Philippe Dufresne]

I know that the law clerk's office has already been supporting the work on this important issue and my colleague, Mr. Denis, has been providing his expertise and the office's expertise and that will continue. Certainly, I have a background in human rights law, including harassment issues, so to the extent that I am involved on reviewing those matters, that will be of assistance. With what I have seen so far, I'm very confident that you have been receiving good support on those issues. It is a challenging situation and it is a unique workplace. I think that the challenge is to look at how to incorporate the principles of ensuring workplaces and environments free of harassment in a manner that is workable, given the particular environment that you are in. Certainly we will continue to support the work of this committee and the subcommittee however we can in this important work.

[The Chair, Conservative, Joe Preston]

Thanks for your try.

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

I have just one area I wanted to talk about.

You are an officer of Parliament, correct?

[Philippe Dufresne]

Yes.

[David Christopherson, NDP, Hamilton Centre, ON]

Of course, we have separation between the executive and Parliament. The last thing I am is a learned lawyer—trust me—so my questions are very much based on experience.

Could you give me some of your thoughts on why it is and why it's important that you are seen as an officer of Parliament, as opposed to an extension of the executive and the bureaucracy, which they are constitutionally mandated to be responsible for?

[Philippe Dufresne]

I think it's important for a number of reasons, certainly in the context of the separation of powers. Well, we don't have a perfect separation of powers. We have the executive that is sitting in the legislative branch. As was previously discussed, we have the executive appointing in the judicial branch. From a standpoint of each branch of government, each branch of Parliament being able to function with the necessary autonomy, this is of fundamental importance.

Certainly in the role of a parliamentary officer, it needs to be very clear where the loyalty is and where the mandate is. That is particularly true in the context of a law clerk, who is also a lawyer providing legal advice.

It is important. You may receive legal input from a lawyer from the government, but the law clerk's office is there to provide advice to the institution and to you, as members.

For that reason, it is important that we be, and be seen to be, separate and distinct from the executive. And indeed, we are.

[David Christopherson, NDP, Hamilton Centre, ON]

This means that your relationship with me as an opposition member would be exactly the same as with government members. The fact that they are in the government caucus is not an issue for you. If you are a member of Parliament and have a seat in the chamber, then you are equal to everyone else who has a seat in the chamber, in terms of your work and advice, and whose client you represent. Is that correct?

[Philippe Dufresne]

I think that's correct. We provide legal advice to the institution and members. We provide legislative advice in the context of private members' bills. Those bills are often presented by members of the opposition. Certainly our role is to provide that advice, and to provide the same advice whether we are getting a question from a member of the governing party or a member of the opposition party. Our role is to provide the best advice we can and in a way that supports the institution, the privileges, and the members.

[David Christopherson, NDP, Hamilton Centre, ON]

Good.

Can I ask, in the experience you just went through, what involvement the opposition was given in this process? What interaction did you have, or are you aware of, in terms of the opposition parties playing a role in hiring someone who is everybody's lawyer?

[Philippe Dufresne]

I can't speak to any context that would have been outside of my presence. To my knowledge, I did not meet with members of the other parties in the context of the appointment and in the context of the process. Beyond that, I can't speak to what consultations would have taken place.

[David Christopherson, NDP, Hamilton Centre, ON]

I can tell you there are none, and this is a huge problem.

I'll end with this, Mr. Chair. This is an ongoing issue, and it's not the first time. We saw the same thing even with the Auditor General. There is a minuscule, if any, involvement by the opposition members, and this is completely wrong, in my opinion.

I just state for the record that we need to be making some dramatic changes. I can understand the government leading the process. They are the ones with access to the money in order to hire headhunters and to facilitate the process. However, to completely carve out the opposition members from any kind of meaningful role, to me, is the opposite. It should be an equal all-party process. That's the way we hired the sergeant-at-arms at Queen's Park, and it worked very well. That sergeant-at-arms was seen as everybody's sergeant-at-arms.

For the record, I believe that this is not a fulsome reflection of democracy when we are hiring officers of Parliament who are accountable to all of us. Right now the exclusive domain of hiring is in the hands of the government. The only role the rest of Parliament gets to play is to have a vote saying “yes” or “no”, “we agree with the entire process that the government has completely controlled“. That's just one of those things that bug me.

I'll end where most of my colleagues started, and that is to say, I'm thrilled with your appointment. This role, I can't imagine anyone stepping into Rob Walsh's shoes, but I think you have the best chance of anyone I've seen. I wish you all the best, and I do hope you can live up to the standard Mr. Walsh set, which was, to me, the gold standard of what we look for from a parliamentary law clerk.

Thank you.

Thank you, Mr. Chair.

[The Chair, Conservative, Joe Preston]

I have no one else on my list.

Mr. Dufresne, thank you very much for joining us today. It's been great to get to know you a little bit better. I have a feeling that on a couple of topics we're working on, we may get to know you even more.

[Philippe Dufresne]

Thank you. I'm looking forward to it.