Subcommittee on Private Members' Business Committee on Oct. 18th, 2011

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Yes, that is also something that concerns me.

If it were to be established that this bill exceeds federal jurisdiction and interferes in an area that clearly falls within provincial jurisdiction, saying that the bill could be amended at the committee stage would not be enough.

I can't see how we could move forward with something like this. The second criterion says, and I quote:

Bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms.

There is a priority ranking when it comes to collocation. If the federal government interferes in collocation, could it be said that this is a subcategory of federal collocation? Could that work?

[Michel Bédard]

Given the way it's written, this bill could not be given such an interpretation. It's important to realize that federal jurisdiction regarding debt priority ranking is limited to certain well-defined areas, such as bankruptcy, tax collection and banks.

If someone tried to do indirectly something that cannot be done directly, that would be deemed unconstitutional because the purpose, indeed, the very essence of the bill would be unconstitutional.

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

Are you saying the pith and substance of the bill is problematic or...?

[Michel Bédard]

What I'm saying is that the pith and substance of the bill belongs to the provincial jurisdiction. Therefore, based on criterion number one, the subcommittee could have grounds to designate the bill as non-votable.

[The Chair, Conservative, Harold Albrecht]

Go ahead, Mr. Reid.

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

This is an area where I don't feel I have sufficient facts before me to render a firm decision one way or the other. I think it would be helpful if we were to take the opportunity to invite somebody in to provide us with additional information, someone who is an expert in this area.

I'd mention that the practice of inviting someone in or seeking some external testimony before the subcommittee to make a more well-informed determination as to votability or non-votability is one that has been practised in the past. I know this from experience, because it was done vis-à-vis an item of business that I myself brought before this subcommittee in the 38th Parliament, in which I proposed a resolution to amend the Constitution and they wanted further information about whether it would be votable. Ultimately they decided it was votable, but not until they set it aside to a second meeting and acquired additional information.

I would ask the indulgence of the subcommittee to try to do something similar in this case.

[The Chair, Conservative, Harold Albrecht]

Okay. There's a suggestion from Mr. Reid that we get more information.

Mr. Dion.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

When we ask for more information, who will give more information than the analyst appointed for this committee?

[The Chair, Conservative, Harold Albrecht]

Mr. Reid, do you want to respond to that? Who do you have in mind?

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

We could start by asking departmental officials at the justice department. I assume they review and do analysis of legislation that deals with their area. All departments would do this. That would be a good starting point.

[The Chair, Conservative, Harold Albrecht]

Mr. Toone.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

I don't necessarily object to this going forward. It certainly wouldn't be the first time there has been a question mark on a bill that has gone before the House. Perhaps what you're proposing would be more appropriate at the committee level.

I'm wondering when this committee next sits, in order to be able to go through that process, as I don't want to delay the bill unnecessarily.

[The Chair, Conservative, Harold Albrecht]

The way I understand it is that we have two options. We could follow Mr. Reid's suggestion, have this subcommittee meet again and bring someone in to speak to this, or we could vote it non-votable and then go through the process of having the person who is submitting the bill appeal that, at which point the entire committee would discuss the votability of the bill.

Is that correct? Are those the options we have?

[Michel Bédard]

In the past, since I have been assigned to this committee, the committee has sometimes delayed a decision on a bill. I was not here during the 38th Parliament when the expert witness appeared.

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

[Inaudible--Editor]...written submission.

[Michel Bédard]

It's possible. It's really up to the committee.

[The Chair, Conservative, Harold Albrecht]

I think we have two considerations. One is the timeline in terms of wanting to make sure that this bill isn't unnecessarily delayed, but on that note, we have time because it's in the second half, after the 15, so we do have some time there to study it as a committee.

I think the question is, do we want to study it as a subcommittee and then still report it to the full committee, or do we want to make a decision today and then know that we do have the avenue of the entire committee hearing the submission? I'm open on that. I'm simply your chair, so it's the committee's decision, not mine.

Mr. Reid.

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

I'm not trying to address the question you've just raised, but I do want to raise a concern. We can't change the criteria. They're laid down under the Standing Orders. But I do think the criteria we face are problematic in that they say, “Bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Charter of Rights and Freedoms”.

I think it would actually be more helpful.... Our previous discussion earlier today indicated that we were thinking this way anyway: it's really a question of whether they violate the Constitution in some way that is not fixable. Ultimately, the question of whether it's a clear violation is one that is to be made by the courts, not by us, but on the question of whether the item could be fixable, it is at least contingently something that should be made either by this body, by our parent committee, or by the House--

[The Chair, Conservative, Harold Albrecht]

Just to clarify, Mr. Reid, I think that on this one our analyst is more concerned about criteria number one than number two in terms of the jurisdiction.

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

That's true, and I recognize that, but essentially the point is this: is it something that is irretrievably broken? As he says, is the object of the bill something that's irretrievably problematic or is it something that is fixable via an amendment?

[The Chair, Conservative, Harold Albrecht]

Mr. Bédard, do you want to respond to that?

[Michel Bédard]

Just on the question of procedure, when this subcommittee reports a bill as non-votable, there's an appeal to the full committee. The committee, PROC, had witnesses appear before it when it was looking at bills in the past, so this is one thing. Also, with respect to criteria number one and criteria number two, criteria number one does not include the clearly unconstitutional point, but whether it is or is not within federal jurisdiction.

[The Chair, Conservative, Harold Albrecht]

Mr. Dion.

[Stéphane Dion, Liberal, Saint-Laurent—Cartierville, QC]

I was Minister of Intergovernmental Affairs long enough to know that colleagues in this House are very, very generous and want to intervene about everything, and sometimes we need some discipline. It's not the end of the world to be told that the substance of your bill is outside federal jurisdiction. It may be a good way to improve the ability of our colleagues to focus on their own role. I would suggest that we should say no, because it's not the end of the world, and they should understand that if we say no,

it is then submitted to the full committee. Right?

[Michel Bédard]

Exactly.