Evidence of meeting #136 for Procedure and House Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was whether.
A recording is available from Parliament.
11:20 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
I actually wrote a book on this, but I wrote it in 1993 and a quarter of a century has gone by, and so on.
What is the case on the the ruling from David Stratas? Do you have any idea when we'll find out whether leave to appeal has been granted?
11:20 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
The issue there was the proper interpretation to give to the minister's interpretation of her obligation to provide a report to the House. The appellant, Edgar Schmidt, who is a former drafter with the Department of Justice, was arguing that the standard should be a stricter standard and that you would have to really be satisfied that there is a strong argument or credible argument of constitutionality and that would provide further charter protection.
11:20 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
It sounds to me as if he was arguing in favour of basically looking at a balance of the probabilities, whereas the standard currently being applied would be sort of a reversed version of beyond a reasonable doubt.
Does that sound like a rough way of describing the two?
11:20 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
I would agree with that. I think that's really the issue. Are you going to require that you feel it's more likely than not that this is going to be upheld, or are you going to find that there's no credible argument? It's not exactly the same, but it's the same idea.
11:20 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Forgive me making this editorial observation—you are free to agree or disagree with what I have to say—but balance of the probabilities sounds, when you first hear about it, to be the simpler test. However, I would say that's actually not true. Finding no credible or reasonable argument to be given, no argument that a reasonable person would take seriously—that's the reasonable person test and this is a version of that—is actually I think easier to do because you're surrounded by reasonable people, whereas balance of the probabilities is balance of the probabilities when trying to divine what the nine people on the Supreme Court are going to be ruling. It's actually the balance of the probabilities as to whether it would survive being tested at the Supreme Court.
That is an inherently difficult task. You have people coming onto and leaving the court, some of whom—at this point, the majority of whom—have probably never dealt with a language rights case. There's actually, I would submit, a higher degree of uncertainty about that.
I just throw that out as an observation. Does that sound like...?
Remember, we have a situation in which drafters working for the justice department, for the minister, are trying to provide this kind of feedback on absolutely every single piece of legislation that comes forward. I would think that would actually be a hard standard for them to meet.
11:25 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
I think your description is consistent with what the Federal Court of Appeal found. It said that the executive is not limited to proposing measures that are:
...certain to be constitutional or likely to be constitutional. Rather, as a constitutional matter, in the words of the Federal Court...it is entitled to put forward proposed legislation that, after a “robust review of the clauses in draft legislation” is “defendable in Court.”
The court goes on to ask why that is. One of the reasons is that the charter is a document suffused with balances. It's not unequivocal. There are no unqualified guarantees of rights and freedoms. There's considerable scope for questioning debate, deliberation in Parliament, vis-à-vis that. At the end of the day, there's a role for courts to play.
What's interesting in the decision in Schmidt is that the court goes through, in large measure, highlighting some of the uncertainties in predicting. They talk about the fact that the constitutional authorities are not necessarily good precedents in later cases. Courts now depart more readily from earlier constitutional precedents.
We're talking about some of the decisions from the 1980s. This is more than 20 years later. We've seen the court, and Schmidt talks about certain specific cases—the Carter case on physician-assisted death where the court changed its jurisprudence on constitutional validity in a charter matter.
11:25 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Was Justice Stratas's point there that it would have been impossible to bring forward some aspects of bill—I've forgotten the bill number, the assisted dying act—had we applied the stricter criteria we're trying to...? Is that part of what he was saying?
11:25 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
I think it may be that you would have to report on many more bills, because the consequence for the Minister of Justice is that they have to present a report. It doesn't mean the bill doesn't go forward. It's a different consequence here. With this committee, the consequence is that the bill is not votable.
In my sense, the criterion is a similar one. Just to quote one last part of the decision, the court says:
...in conclusion, I ask this question: given the nature of constitutional law and litigation and the practical obstacles facing the Department of Justice, what is more likely? That the examination provisions require the Minister to reach a definitive view, settle upon probability assessments and report when she concludes that proposed legislation is “likely” unconstitutional? Or that the examination provisions require the Minister to report whenever there is no credible argument supporting the constitutionality of proposed legislation?
I would suggest the latter. Given the uncertain, difficult jurisprudential terrain of constitutional law and the time when the Minister is expected to assess proposed legislation—
This is the part I read to you in my statement:
—the only responsible, reliable report that could be given under the examination provisions is when proposed legislation is so constitutionally deficient, it cannot be credibly defended.
One of the questions is this: Is that a test that can ever be met? If you're putting the bar too high, you're never going to report, or you're never going to determine something not to be votable. The court says that one thing is clear. Even in this difficult, uncertain, speculative environment, some proposed legislation may be so deficient that the minister can conclude with confidence that no credible argument could be made to support it. I would suggest it's the same for this committee.
11:25 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Just to be clear, regardless of what report was done, or whether we approve a piece of legislation as votable, it goes through and gets enacted, if it's actually unconstitutional and someone takes it to court, it will eventually be struck down. By definition.... I've actually given a tautological statement. That which is unconstitutional is that which the Supreme Court says is unconstitutional. By definition, this bill, if it's unconstitutional, becomes the law of the land, or is an attempt made by Parliament to make it the law of the land. It will nevertheless not be the law of the land if the court deems it to be unconstitutional.
11:30 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
That's correct.
It's interesting. In terms of having the last word on something, and in terms of questions not always being clear, administrative law as a field of law recognizes that, for many legal questions, there may be more than one possible answer.
It has been stated sometimes that the court that gets it right is really the court that has the last word, because you have appeals, and you can overturn it. It's not necessarily that the other one was objectively wrong, but someone has to have a last word on those questions.
11:30 a.m.
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Right.
That is actually the point. The Supreme Court is.... Simply, the buck has to stop somewhere, and it stops there.
We used to have it stop in London, and at that point we discovered, on all kinds of issues—the Persons Case comes to mind—that in the judgment of what was then the final word, the Supreme Court was incorrect. They decided that frequently.
That's all I have at the moment.
Thank you, Chair.
11:30 a.m.
David Christopherson Hamilton Centre, NDP
I hope colleagues will agree that, if nothing else, when you bring in the parliamentary law clerk, it's always fascinating.
Just help me make sure I have the horse in front of the cart. The matter before us right now is not specifically the constitutionality of the bill. That is the second step. The first step is that we as an appellant body have been asked to overrule a judgment that a given bill is not votable because it is obviously unconstitutional.
I moved the motion to bring you in. What I wanted to hear from you was just that. Is it that blatant? If so, it's a slam dunk for us, but I'm hearing something very different from that. I'll get to that in a moment.
Staying with the votability, colleagues, I come to this with a strong bias. I've always had a great deal of difficulty with the notion that the majority of MPs get to decide whether an individual MP's bill gets the right of a vote. This is in the context of how our rights as members of Parliament have been lost over the decades as our parliamentary system has evolved. I always start with the bias that you better have a darn good reason for telling a member of Parliament that they don't have the right to air their issue. The one area where you have some sovereignty around here is the private member's bill, and now you're being told by everybody else that your right has been extinguished, and that this was done by peers, colleagues, so I offer my bias up front.
Having said that, I think it makes good sense that if something is outrageously unconstitutional, if it is obviously a violation of our Charter of Rights, we would not want to give it credibility by allowing a vote on it. The fact that it is unconstitutional means, in my view, that you haven't done your homework as member of Parliament. Rather than just saying your rights have been extinguished, go back and do your homework. Do the job right and figure out a way to bring it forward so that it is at least constitutional. If you can't do that, too bad. That's kind of where I am.
Parenthetically, I want to say that one of the things I am truly going to miss in not being a member of Parliament is having a fascinating discussion with a group of people where one of them says, “Yeah, I wrote a book about that.” This didn't happen in my previous life, and I don't expect it to happen in my future life, but in this life it happens, and it's amazing, especially when it's someone of the credibility of the person I'm talking about.
To get back to the point, for me, that's why it was so important to have you in here. There was some question that, by virtue of your office, your having given a constitutional opinion to the author of the bill would somehow negate our right to have an equally thoughtful opinion. That was a real problem.
I think we seem to be okay with that. We're not asking what advice you gave them. We are saying, “This is now before us. What advice do you give us?” It may be the same. It may be different. That's between you and the member, but anything that would preclude a committee of Parliament from seeking and benefiting from the thinking of the parliamentary law clerk nullifies, to me, what the system is there for. I'm a layperson. I have a grade 9 education. If we're going to talk constitutions, I want my lawyer. Who's my lawyer? The parliamentary law clerk.
Anyway, I think we got past that, and it's all good and fine.
Coming back to the actual issue, help me again with the test. Can a credible argument be made against the constitutionality? Tease that out a bit for me, please.
11:35 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
The test is when there is no credible argument supporting the constitutionality.
11:35 a.m.
Hamilton Centre, NDP
Thank you.
I thought I heard you do that. At least you said, “On the one hand,” and then you said, “On the other hand”. To me, when we're saying something's not votable, it should be so strong that there is no “other hand”, but I heard—as a layperson—what seemed like, at least prima facie, good arguments on both sides.
Are you in agreement with what I'm saying so far?
11:35 a.m.
Law Clerk and Parliamentary Counsel, House of Commons
I don't know if they were good, but I did give arguments on both sides.
11:35 a.m.
Voices
Oh, oh!
11:35 a.m.
Hamilton Centre, NDP
That's subjective. The point was that there are at least two arguments that a good lawyer could make.
11:35 a.m.
Hamilton Centre, NDP
How many more tests do we need, though? This is my point.
Regardless of how we feel about the issue—set the politics of the issue aside—the question before us as an appellant body is, should this bill be allowed to have a vote? The only way that it should not be is that if it's so in violation of the Constitution that it just makes a mockery should we allow that vote. That doesn't seem to be where we are.
Now, I've entered into a dialogue with colleagues. I'm only the second speaker—sorry, third—and I enjoy these discussions. I'm looking forward to feedback as we go through, but I have to say, Chair, that this is where I thought we might end up.
Regardless of how I feel about the bill, as a member acting in an appellant body manner, I'm now finding it very difficult to justify saying to a colleague, “Your private member's bill does not deserve to be voted on.” Because why...? The only thing I can think of is that we either start getting into the constitutionality, in which case it seems that there's at least a valid argument and debate to be had, on both sides. Second, of course, is that if it does get past this body and goes on to the House, the House can use a different standard, that is, whether they like the bill or not and whether they agree that it ought to be the law of the land. That's not what we're doing right here and right now.
Somebody please correct me if I'm wrong, but where we are right now is hearing from a subcommittee that has said, “We believe this is not votable because it's not constitutional”. The member has appealed that decision to us. It is our decision to make before it goes to the House. I haven't heard a good argument that backs up the subcommittee argument that it's unconstitutional, because the parliamentary law clerk has at least offered up that there can be at least a credible argument on both sides, as a starting point, recognizing that at the end of the day it's the Supreme Court that will make a final determination on its constitutionality. Even that may not be the end of the day. A further Supreme Court in the future could do something, but for our purposes here, this is where we are in that process.
Right now, colleagues, I am strongly inclined to vote against the recommendation of the subcommittee and vote in favour of this, allowing it to go forward. Having said that, I'm going to listen intently. This is a serious matter. If people see it differently than I do, I can be persuaded. That's my thinking so far.
I thank you for the floor, Chair.
11:40 a.m.
Liberal
The Chair Liberal Larry Bagnell
Thank you.
By extrapolation, if the member appeals to the House, then you would have the same argument, making—
11:40 a.m.
Hamilton Centre, NDP
Sorry, but on a process that appeals to the House, does it go to the House for a question of votability, or do we just pass it on and they vote?
11:40 a.m.
Liberal
11:40 a.m.
Hamilton Centre, NDP
If it's supported here, it goes to the House. Is that right? It goes to the House as a bill...? I'm seeing the clerk say yes.
Thank you.
11:40 a.m.
Liberal
David Graham Liberal Laurentides—Labelle, QC
We had one appeal once before that went to the House, when Ms. Malcolmson had her appeal. That went to a secret ballot by all members.