Evidence of meeting #8 for Subcommittee on Private Members' Business in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was charter.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Dara Lithwick  Committee Researcher

1:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

The meeting will come to order.

This is meeting number eight of the Subcommittee on Private Members' Business in regard to votability. Mr. Valeriote is not here, but we do have quorum so we will begin. I believe Mr. Butt wanted to make—

1:05 p.m.

Conservative

Brad Butt Conservative Mississauga—Streetsville, ON

Mr. Chair, at the outset, I want to indicate that one of items on today's agenda is my motion M-587. Therefore, when that comes up, I will not be participating in the discussion or voting on that item.

1:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, sir.

I'll hand it over to the analysts for our first motion, M-585.

1:05 p.m.

Dara Lithwick Committee Researcher

In regard to M-585, this motion from Madam Groguhé calls on the government to redesign its economic policy to help owners of small businesses in the manufacturing sector create new jobs, given the unemployment rates since the 2008 recession. That's a summary of the motion.

To apply the four criteria, this motion does not concern questions that are outside of federal jurisdiction, and in its focus does not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms. Also, this motion does not concern questions that are substantially the same as ones already voted on by the House in the current session or preceding it in the order of precedence. Last, this motion does not concern questions that are currently on the order paper or notice paper as items of government business.

1:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Is everybody satisfied?

1:05 p.m.

Some hon. members

Agreed.

April 21st, 2015 / 1:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

We'll go to Bill C-639.

1:05 p.m.

Committee Researcher

Dara Lithwick

Bill C-639 from Ms. Young is an act to amend the Criminal Code with respect to the protection of critical infrastructures. This enactment, in summary, amends the Criminal Code to create an offence of interfering with critical infrastructures.

As an aside, there are some news articles and whatnot commenting on the bill, if anybody wants to look into that.

In terms of the four criteria, the bill does not concern questions that are outside the federal jurisdiction, and it does not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms. The bill does not concern questions that are substantially the same as ones already voted on by the House in the current session of Parliament or preceding it in the order of precedence. There is another bill by Randall Garrison that also deals with critical infrastructures, but it is not in the order of precedence and has a totally different focus, so this issue is not raised at all. Finally, this bill does not concern questions that are currently on the order paper or notice paper as items of government business.

1:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Are there questions?

Mr. Toone.

1:05 p.m.

NDP

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

I do have a couple of questions, if I may.

As you mentioned in your introduction, there has been some controversy about this bill. I am concerned about the second criterion that it must not clearly violate the Constitution Acts. I'd like to get a little more elaboration on that, on where that line is, because Minister MacKay himself has said outside of question period that when protests occur in front of some infrastructures, such as the pipelines that might be going through Vancouver, protesters could be held criminally responsible.

I'm also worried about the way this bill is written. We're talking about how anybody who “obstructs” any “critical infrastructure” could be held criminally liable. It's clearly stated that “critical infrastructure” includes any “facility, network, service or asset” that provides a public service and that “the disruption... could produce serious adverse economic effects”.

This strikes me as being very broad, especially since we already have section 430 in the Criminal Code that deals with mischief and has much more clearly defined parameters. This seems to be creating a very wide parameter. To me, this is clearly an affront to some fundamental freedoms as defined by the charter. We have the right of peaceful assembly and we have the right of association. A union who is protesting, for example, the postal workers protesting in front of a post office, could be considered criminally responsible for obstructing an asset that could produce a serious adverse economic effect.

To me, this bill really goes quite far. I'd like to go back to criterion number two. Could you elaborate?

1:10 p.m.

Committee Researcher

Dara Lithwick

In terms of the second criterion, the way that it's framed in terms of the evaluation at this stage, which is determining the votability or the non-votability of items, it's not the same as doing a charter analysis of likelihood that it's compliant, or likelihood that it might be challenged in that sense. It's whether there is a clear violation. An example of a clear violation would be something specifying that no one under five foot five may vote in a federal election from here on in. That's a clear violation of a voting right. There wouldn't be any question of being able to amend that at committee. You wouldn't even need to do a section one analysis of the objective of the legislation vis-à-vis its aims.

At this stage the concerns that you raised are probably important ones to be raised in the debate on the bill in the House and at committee, should it go that route.

However, the issues that you raised would require at this stage an analysis of the charter rights that are implicated and an analysis of whether they're saved by section one. The need for that analysis almost shows that it's not so clear, even though there might be questions, that it would be deemed non-votable at this stage. Of course, it's the committee's decision how to vote on it, but that is the understanding I've taken from colleagues on the second criterion.

1:10 p.m.

Conservative

The Chair Conservative Dave MacKenzie

It's not for us to debate the bill.

I think when the analyst has given us her opinion, our decision is only to send it on to committee for that debate.

1:10 p.m.

NDP

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

Well, our decision is to determine whether it can get second reading, I think.

Right?

1:10 p.m.

Committee Researcher

1:10 p.m.

NDP

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

It's an interesting analysis. I want to point out that Criminal Code amendments are done through government bills and would benefit from the vetting process to see if they're constitutional, whereas the private member's bills aren't. That's one of the problems.

We are charged with criterion number two. I do want to evaluate it on that level.

I do have a problem with this bill. In my opinion it does clearly violate the Constitution Acts. You gave the example of someone who is five foot five. I'm not sure what criteria one could use to discriminate on the basis of height, but I didn't see that in that charter anywhere. I'm not sure if that's a criterion, but freedom of association and freedom of peaceful assembly certainly are in the charter. To me that's even a greater violation than the one you suggested.

1:10 p.m.

Committee Researcher

Dara Lithwick

The questions you raise go to the language of the criterion of whether there is a clear violation of the Constitution Acts, including the charter, or whether there is a possibility or likelihood of a violation. In terms of the language adopted here, and in previous decisions made and analysis done at this subcommittee, the determination of clear violation really has been such a standard. It has to be so clear that it's not something that could be read down, amended, or qualified, whether you have to do that full charter analysis, or the section one analysis.

By determining that the bill does not clearly violate the Constitution Acts or the charter, it's not saying that it does not raise constitutional issues or charter issues. It does not say there might be other problems with the bill or things that raise concerns. The committee is not saying this bill should be passed; it's just saying that the bill is not disqualified because it has passed this minimum threshold. Should the committee determine down the road that it would like to alter that threshold, that's a separate question. In terms of the threshold established at this stage of whether it clearly violate the Constitution Acts, including the charter, the analysis at this point suggests that there would need to be further analysis, which almost answers the question.

1:15 p.m.

NDP

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

I agree. I think there needs to be further analysis.

If we were to vote it down at this level and if I understand the process, there would be the possibility of an appeal to the committee on procedure and House affairs—the full committee instead of this subcommittee. At that point I think the sponsor of the bill could then present their arguments defending the constitutionality of the bill.

I don't think this committee is properly equipped to evaluate this fully. Were there to be preparation at the next committee level during an appeal, I think the procedure and House affairs committee could then air this out, find out whether there are grounds to move it forward.

In my reading of this bill, when I see that the minister himself has said publicly that people who have protested against the Kinder Morgan pipeline in Vancouver could be held criminally responsible, I think the minister himself is saying there seems to be a limit on the freedom of association and the freedom of peaceful assembly.

I need to see a better airing of this argument. I personally don't believe that this passes test number two, that it clearly doesn't violate the Constitution Acts. In my opinion, it clearly will violate them.

1:15 p.m.

Committee Researcher

Dara Lithwick

The question for this committee is to determine whether in its opinion the threshold has been met or whether that is a question best determined when the bill goes before the House.

1:15 p.m.

NDP

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

We are charged with this debate here, so we must answer to our responsibility. My responsibility isn't to simply ignore the criteria in front of me; my responsibility is to respect the criteria. My responsibility is not to say, “Oh well, it will go to debate in committee if it is adopted by the House of Commons”. I have no idea what's going to happen in the House of Commons.

My question here is whether it meets the four criteria. That's the only thing I'm charged with, and it's the only thing I'm looking at. The future process is of no concern to me, other than that if it were to be voted down, then I think criteria number two could be more fully debated during an appeal at the committee on procedure and House affairs.

1:15 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Valeriote.

1:15 p.m.

Liberal

Frank Valeriote Liberal Guelph, ON

I'm conflicted about the issue. I am aware that the Criminal Code uses the words “obstruct”, “interrupt”, or “interfere” in other sections, for instance, obstruction of justice and interference, which is not unconstitutional. Because I'm aware that these words are used elsewhere, I'm not convinced that this likely violates the Charter of Rights and Freedoms. I get how perilously close it appears to be, but I'm not completely convinced that it actually does.

Is there a process, other than the appeal process that Mr. Toone speaks of to the procedures and House affairs committee, should it not pass here? Is there a way for you to come back with a fuller examination of this, let's say next week, so that we don't automatically turn it down? Can we maybe meet again next week and have you give us a further opinion, or not?

1:15 p.m.

Committee Researcher

Dara Lithwick

My understanding is that you're asking about the likelihood of it—

1:15 p.m.

Liberal

Frank Valeriote Liberal Guelph, ON

Violating the Charter of Rights and Freedoms....

1:15 p.m.

Committee Researcher

Dara Lithwick

—violating the charter. That analysis is not the analysis—

1:15 p.m.

Liberal

Frank Valeriote Liberal Guelph, ON

That we're to undertake?