Procedure and House Affairs Committee on March 21st, 2017

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I didn't mean for me today; I meant for a committee over a period of months. That's very different from—

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I think you should start now.

[Blake Richards, Conservative, Banff—Airdrie, AB]

You have 32 minutes now. Go ahead.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

All right.

I don't fault the House leader for doing things this way. Taken on its own, and without the omnibus motion and the artificial deadline imposed by that motion, it's not bad in many respects.

I am a bit puzzled why some of the things are in there, because we did discuss them at previous meetings of this committee and rejected them. The most obvious item is the proposal to abolish Friday sittings. We indicated we didn't support that. That was actually reported back by this committee, so it seems odd that we're being asked to consider it again.

There are others that haven't been discussed, including, for example, electronic voting. The electronic voting issue was discussed, as noted here, by the McGrath committee. It was discussed and a report was actually issued on electronic voting—true fact—by the committee on standing order improvements set up by the Chrétien government. It was a special committee, as I mentioned. It issued six reports.

I have not had a chance to read those reports—although, obviously, I would want to do this. We would all want to do that. We'd probably want to enter them into evidence. Six reports, one of which was on electronic voting the time, were issued. Things have changed. Systems have changed for electronic voting. I'm guessing they're more reliable than they were in the past, and as the government House leader's report observes, we are moving to the West Block.

The House of Commons will be there, I think, by the end of this Parliament. I'm not certain of that, but, if not, it will be where we open the next Parliament. So as one is installing desks, one could put in electronic voting systems. There is an obvious logic to that from an infrastructure cost point of view, and so on.

There are things in there that on their face strike me as reasonable. By the way, I don't want to launder the details of that proposal, but that's one kind of electronic voting. You can also vote without actually going to the chamber. That's how they do it in the U.S. Congress. I don't like that. I think we should be in the House. I won't say we have no lessons to learn from the American representatives, but that is not one of the lessons we have to learn from them, or if we do, we have to learn the merits of doing things while actually being in the Commons for what it's worth.

There are a number of things in here, and I'm not belittling the report. I did say I didn't really agree with the arrangement of three themes. Theme one is management of the House, of which the subsidiary headings include the issue of sittings, including Fridays, and then electronic voting. Those are just different topics. They're not two subsets of the same thing, but different topics going back to the omnibus point I was making earlier about the House calendar, whether we should start sitting earlier in January, earlier in September, whatever, and the nature of routine proceedings.

There would be another review of private members' business, which involves a number of technical changes. Let's go through private members' business to make the point about the difficulty of trying to do all these things within the very tight deadline suggested by Mr. Simms' motion.

Remember I said it was theme one of three themes. Within the rubric of management of the House, we have the subsidiary headings of the sittings, electronic voting, the House calendar, routine proceedings, private members' business, and prorogation.

Prorogation is obviously also an entirely different topic and not a simple matter, because it involves moving from the House and its privileges to the nature of the crown, and what the Constitution, particularly the unwritten part of the Constitution, the conventions, say about prorogation. I think prorogation is a very important issue. I spent a lot of time reading about it in the midst of the crisis that led to prorogation in 2008. Given the tiny number of people who know anything about this at all, I regard myself to be in the upper one per cent of the Canadian population in my knowledge of prorogation, at the risk of sounding a bit self-promoting in that regard. We could spend an entire Parliament dealing with the issue of prorogation in itself. It might be a good topic for us to look at.

We'd look at conventions. We'd have to look at how what we report affects conventions. Conventions are the practices that are seen as being particularly weighty in public opinion, the things that it is outrageous to violate, even though there is no law to that effect. Those take form in a particular way, and if you want to change a convention or affect it, or systematize it—which I think is really what we're trying to do here, to systematize it—you have to act in a certain manner.

A committee report can be very valuable in that regard. A committee report that just mentions this thing in passing as part of a rush would be very unhelpful. One of the things that happens in scholarly disputes is the issue of does a convention exist here, is there still that usage or has a convention eroded and one that previously existed does not exist. You'd have to bring yourself up to date with some very significant scholarship on this. Albert Venn Dicey, the great 19th century English writer, wrote Introduction to the Study of the Law of the Constitution, the classic text that created the term “convention”.

Lord Bryce, who would be named the British ambassador to the United States, in his book The American Commonwealth, in which he wrote about the American political system for a British audience, pointed out to his British audience that although the Americans thought they had a purely written constitution, they had conventions too, and he listed examples of the conventions that existed. Conventions are restrictions on a power that nominally exists, an unwritten restriction, or at least an uncodified restriction, not written down in the statute of the Constitution, the violation of which would result in profound sanctions.

One that existed at that time was that the president, who in theory could serve unlimited consecutive terms, would serve no more than two, following the precedent set by George Washington. That convention prevailed until 1940 when Franklin Roosevelt ran for a third term and was not punished for it. Voters voted him in, but sometime within the Eisenhower presidency Congress and then three-fourths of the states passed identical resolutions amending the constitution so that couldn't happen again. No president can serve more than two terms. It is not a slight against Franklin Roosevelt to say that a lesser man with an equal temptation could use that office and the perpetual holding of that office in ways that the framers of the Constitution, and obviously the majority of Americans in the 1950s when that amendment was passed, did not think were appropriate. And so a convention was codified to ensure that it could not be overridden again.

It's all about conventions when it comes to prorogation, and it was not clear what the conventions were. So I'm not saying that prorogation shouldn't be here. I think it's a really great topic to study. I'm just saying that it can't be studied as one of a three-part list, part one of which has six subsidiary parts, one of which is something that is so vast that you have to get into.... I didn't mention Ivor Jennings, another great scholar we could look at. If we did study prorogation, the amount of work would prevent us from having time for anything else. And we've got to do this by June 20th?

We have to come up with witnesses, according to Mr. Simms' motion, if we adopt it today, by Tuesday of next week.

In terms of the chief authorities on conventionality and on the way in which prorogation is handled and historically has been handled in Commonwealth countries, these precedents are taken very seriously by our main scholars. They could not be located within seven days. In some cases, we would have to find out who these people are. How do we know? We're not specialists.

That's just for prorogation. I'm only mentioning it because it's the one that my eyes stopped upon as I went down this list. It's not because it is the standout, but maybe it is the standout.

On private members' business, here is what is written. The House leader's report or discussion paper frequently cites the McGrath committee. It reads:

A principle objective of the McGrath Committee report was to find ways to give Members a more meaningful role in the legislative process. A well-functioning House depends on the extent to which Members feel like they are involved and contribute to the legislative process.

That's the first paragraph. You can't object to that, except to say that for making members “feel” like they're involved, I would say that it's more about the extent to which members are actually involved, but that's okay. That's a minor thing.

Here's the next paragraph. I want you to keep track of all the different potential ways in which we could change private members' business. There aren't bullet points here, but I'm going to number them. I'm quoting again:

A key way to empower Members is through Private Members' Business. Possible changes to Private Members' Business could be examined to achieve that objective.

Some examples include:

...adding another rubric for Private Members' Business each week; examining the possibility of allowing Members' to exchange places on the List for the Consideration of Private Members' Business under certain conditions; and ways to manage Senate Public Bills that delay the replenishment of Private Members' Business, possibly by having a separate rubric for these bills.

There you go. There are three separate subsidiary pieces of business under private members' business. Our three-part program of adjustment to our rules, which turns out to include, in the case of theme one, six separate substantive subheadings, now involves a third level of subheadings. It's starting to look like a statute: section 1, subsection 1(a), sub-subsection 1(a)(i), etc. It's kind of looking like that.

There is a lot of substance here, and we're supposed to find the experts who can deal with this within seven days and to have all of discussions done and a report back by June 2.

Let me tell you about the experience of the electoral reform committee of which I was a member, with its December 1 deadline. That did not mean we had open discussions and were getting new and fresh ideas up until November 30. That is not what happened. We had to take a considerable amount of time towards the end to go through it. We could go and look it up, but there was a three-week period or so during which we simply could not add new material and have it translated. The professional staff, the analysts, and the clerks were, as is typical here, of superb quality, very hard-working, and very long-suffering.

[Some hon. members]

Oh, oh!

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

There is a consensus on that.

They did what they could to give us as much time as possible and to put off our decision points on various things as long as possible. We were able to put off the recommendations later than the rest, but we had a substantial amount of summation of witness testimony.

I don't see how you could accomplish that given the June 2 deadline, which in practice means, I don't know, a May 15 deadline for starting to sum up the witness testimony or for complete.... Actually, it would be earlier than that, probably, but we can go back and examine that. The records of the electoral reform committee exist and provide as close a parallel as I can think of to this sort of thing, where you're dealing with something that's very amorphous in its initial conception, as opposed to a committee being presented with a bill, where there's a whole different system we go through, or as opposed to us dealing with a matter of privilege, again, in certain situations.

When it comes to this kind of thing where you have an amorphous subject matter and you have to turn it turn it into recommendations, a substantial lead time must be taken into account. Your deadline is actually much earlier than it appears to be. That is a significant issue for us as we work toward this deadline.

Mr. Simms' motion proposes that we be prepared to engage in extra sittings.

Where is that...?

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

It's at the bottom.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Oh, yes. This is it:

e) The Committee meet outside the regular meeting hours as necessary to complete the study pursuant to paragraph (d).

Wow. Even if you didn't have any competing agenda items for this committee, you'd have a lot of difficulty, as I've suggested, with that deadline. In fact I'll state baldly that the deadline is simply incompatible. I'm not so sure the deadline would have been incompatible if we'd started on the first day Parliament came back and said that we were going to produce a report on the last day before Parliament rose, with a series of recommendations to be given to the next Parliament, because the subject matter is so vast. It is an omnibus rewriting of everything.

It is like creating a new law code. It is the code of Justinian for the Parliament of Canada. Justinian, the Roman emperor, sent out four great scholars, whose names I can't remember—I think one was Trebonius—to different parts of the empire to gather up the best of the laws they could find so that they could produce a single code. They went off and did their work, and the stuff survives. Their reports and his code were produced, but it took decades. It was a long, slow process to codify everything in one single place.

The Criminal Code is a similar sort of thing. It's a codex, a single place where all the criminal laws are connected. We developed that. It was a project of the Canadian Parliament to collect all of the different criminal sanctions and various laws and put them in one spot, the logic being—the sound logic, I think—that it was better to have one place where all the criminal laws were codified. Then nothing outside of that could be subject to criminal sanction. It was for greater certainty and the greater liberty of individuals. That theme has been a consistent part of our parliamentary heritage and our history.

That took place, if I am not mistaken, in the 1890s, but it was not the work of a year, or even of a single Parliament. It was a vast undertaking. I submit that if we approach this as an omnibus measure, then the same problems arise. That's assuming, as I say, that we don't have alternative draws on our attention. But that is not the case.

The Minister of Democratic Institutions met with us just last week. In fact I believe she met with us on March 9, the day before the discussion paper came out and the day before Mr. Simms submitted his motion.

I believe, Scott, you were there at that meeting.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Yes.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Okay. Then these words will seem familiar to you.

She expressed a very valid and I think businesslike concern with the time required to implement some of the recommendations that this committee was likely to make to the proposals contained in the report of the Chief Electoral Officer, which he submits, as required by statute, following every general election, including following the 42nd general election. He produced this report.

We were to produce a response to it. We were in the process of doing that, step by step and bit by bit, working on the easy stuff first, the stuff where we have a consensus. We may not have a consensus on everything, but of course we'll have to cross that bridge when we come to it.

At any rate, at that meeting she said that she had to get on with introducing legislation in the autumn. Therefore, she made the following comments in her opening remarks:

The road to the 2019 election is getting ever shorter. I am committed, as I know all members of this committee are, to improving our electoral system before the next election to the benefit of all Canadians. To accomplish this goal, Canadians need us to work together. I hope to continue to receive your valuable input to inform the direction of improving our electoral process to make it accessible, efficient, and equitable for voters.

Elections Canada needs sufficient time to implement any changes made to the Canada Elections Act before the next election and would like to be election-ready well in advance of an expected writ. The more time Elections Canada has to prepare, the better.

We must also take into consideration that other legislative changes may be necessary to implement your recommendations.

The development and preparation of this bill, and the important discussions and debates in the House of Commons and Senate, shouldn't be rushed.

To give Elections Canada the time it needs, as well as to give parliamentarians the time they need, my hope would be to introduce legislation before the end of this year that would build on your hard work with respect to the Chief Electoral Officer's recommendations. It is our responsibility to take the time to get this right. It is also our responsibility to get it done. It's what Canadians expect.

Now here's the key part:

If the House could have your next report before the House rises for the summer, preferably by May 19, I think we would be well positioned to advance some significant reforms that would improve the electoral process for Canadians.

That's where she wants to go. I literally have no idea how we would achieve that, given that our days would be consumed by that, and to hold these very extensive hearings at the very same time. Her deadline is almost identical with the de facto deadline this committee faces.

Later on she made the observation that, after all, there were over 130 recommendations, which was, as she put it, “quite the task”.

Mr. Chair, having gone through all of that, and as we have just 10 minutes left here, I did have some other things I wanted to talk to with regard to the main motion that Mr. Simms has put forward. But I think perhaps it might make better sense at this point to move to the method I have suggested for improving upon it—let's put it that way.

Mr. Chair, I move that the motion presently before us be amended by:

(a) deleting “2017; and”, at the end of paragraph (d), and substituting “2017;”;

(b) adding, immediately after paragraph (d), “(e) notwithstanding paragraph (d), but consistent with the Committee's past practices, as discussed at its December 8, 2016 meeting, the Committee shall not report any recommendation for an amended Standing Order, provisional Standing Order, new Standing Order, Sessional Order, Special Order, or to create or to revise a usual practice of the House, which is not unanimously agreed to by the Committee; and” and

(c) relettering paragraph (e) as paragraph (f).

I regret, Mr. Chair, that I have only an English translation of this. I don't have this in both languages, although we are, I'm told, working on getting one done, so I can't distribute it to all members. I apologize for that, in fact.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

You could have got it, Scott.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Well, if you had me translating it would be interesting.

Anyway, let me submit that to the clerk, if I could.

[A voice]

It's done.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Oh, you did. Thank you.

Dennis, my assistant, has already done so.

[The Chair, Liberal, Larry Bagnell]

Okay, the amendment appears to be in order, so now we're debating the amendment.

Who wishes to speak to the amendment?

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I will move it normally.

[The Chair, Liberal, Larry Bagnell]

Okay, Scott.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I think that's the normal practice.

The purpose of the amendment is to deal with an issue that I think is.... I'm trying to figure how to put this. I'm not directly addressing the two things. I'm directly addressing one of the two things that I raised. I expressed my concern about de facto closure being imposed; so that's part of it. I'm not directly dealing with the nature of the omnibus measure. What I'm really saying is that once we've said we're only going to pass things that everybody agrees to—which have the support of the NDP, the Liberals, and the Conservatives—we've effectively eliminated anything that anybody believes is too big a chunk to bite off.

As a practical matter, for example, I would make the suggestion that the prorogation element is too large a chunk to bite off, unless it's being done on its own. Even then I'd have doubts about the prorogation item, so there you go. You start taking that omnibus, to use the colourful metaphor, the actual vehicle with all those posters on its side, and you essentially say, let's focus on the Pears soap and not on the Bovril gelatin cubes, because we can get a consensus here.

If I were choosing my druthers, I would be looking, for example.... That long list of items is under three rubrics, or three headings, but as I mentioned, there are many subsidiary topics that are the real substantive topics. I would think that private members' business is a legitimate thing to be discussed. I would love to deal with that. I think we could probably get some consensus. I don't see any evidence from its actions to date that the government is unreasonable in its approach toward private members' business as a whole. That's a positive trend that we've seen developing for some time. The Chrétien government improved over its lifetime and was clearly, by the end, much better than the Mulroney government had been in this regard. The Martin government was too brief to really count; it was a minority Parliament, so it was hard to get private members' bills through. We had another majority under Harper, and again it was an improvement. I think we can see a trend heading generally in a positive direction, and coming back and working on that, making the kinds of changes that are suggested here, might very well prove beneficial. But we have to be careful about it. Anyway, that would be one I would suggest.

On the discussion of management of debate, I think you'd have a hard time getting consensus on that, in that in practice this appears to be about giving government greater control over the agenda, which is the opposite to the direction that opposition parties always want to go. I would say it actually is not truly necessary to achieve a majority government to get a reasonable agenda through. I think you'd have trouble getting consensus, but it doesn't matter, because that's the point. Once you agree that nothing goes through without consensus, everybody agreeing, we simply find that one drops from the agenda.

It reminds me, Mr. Chair, very much of the way in which we dealt with things when I was chairing the international human rights—

[Blake Richards, Conservative, Banff—Airdrie, AB]

I have a point of order, Chair.

[The Chair, Liberal, Larry Bagnell]

You have a point of order.

[Blake Richards, Conservative, Banff—Airdrie, AB]

As interested as I am, I do note that it is now one o'clock, and this might be something we can continue on Thursday.

[The Chair, Liberal, Larry Bagnell]

Go ahead, Mr. Chan.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

I would like to respond to my friend's point of order.

[David Christopherson, NDP, Hamilton Centre, ON]

You're not going to—

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

While it is the practice of committees to informally adjourn, it's the time that we discussed—