Mr. Speaker, I rise on a question of privilege in relation to the failure of the Minister of Justice to respect the tabling requirements, enacted for the benefit of this House by the Parliament of Canada, in section 119 of the Firearms Act and chapter 39 of the Statutes of Canada, 1995.
Section 117 of the Firearms Act confers on the governor in council extensive regulation making powers in recognition of the significant impact which the exercise of those powers can have on Canadians. Parliament also adopted a provision requiring the Minister of Justice to table any proposed regulation before both houses for referral to an appropriate committee of each house before the regulation can be enacted by the governor in council.
Section 118 of the act precludes the adoption of any proposed regulation before the expiry of certain deadlines to ensure that members of both houses have an adequate opportunity to examine and report on the appropriateness of the regulation under the Firearms Act.
This background information makes clear that parliament attaches a great deal of importance to members being fully informed and involved before the governor in council is allowed to make a regulation under section 117. It is against this background that the exceptions to the rule must be assessed.
Section 119 of the Firearms Act provides for two cases in which the governor in council is allowed to make a regulation without the Minister of Justice having first tabled the text of the proposed regulation before both houses. The first exception is where the minister is of the opinion that the changes made by the regulation to an existing regulation are immaterial or insubstantial.
The second exception applies only to regulations made under certain specific paragraphs of section 117 and where the minister is of the opinion that the making of the regulation is so urgent that the requirement in section 118 should not apply.
In both these instances subsection 119(4) of the act provides that where the Minister of Justice forms the opinion that a regulation should not be tabled in draft form, the minister shall have a statement of the reasons he or she formed that opinion laid before each house of parliament.
It has come to my attention that between September 16, 1998, and December 13, 2000, a number of proposed amendments to regulations made under the Firearms Act have not been tabled before parliament as required by section 118 of the act.
The relevant instruments are those registered under the designation SOR/98-468 to SOR/98-471, SOR/99-109 to SOR/99-111, SOR/99-453, SOR/2000-224, SOR/2000-225, SOR/2000-259, SOR/2000-385, and SOR/2001-9 to SOR/2001-12.
In four of these sixteen instances the reason for which the amendment was not tabled was that the Minister of Justice formed an opinion that the regulation was so urgent that section 118 should not apply. In the other twelve cases the regulations were not tabled pursuant to section 118 because the minister formed the opinion that the changes made were immaterial or insubstantial.
As far as I could determine from the records of the House, the minister has not complied in those 16 cases with the duty imposed upon her by subsection 119(4) of the act to table a statement of reasons supporting her opinion that the section 118 requirement should not apply.
On October 17, 2001, my colleague, the member for Yorkton--Melville, rose on a point of order to request that the same minister observe the statutory tabling requirement in the case of yet another regulation which was registered as SOR/2001-336.
There is a fundamental distinction between the point of order raised by my colleague and the question of privilege I raise today. It is my contention that the minister's failure to table the required statements in relation to the instruments I have identified is a breach of the privileges of the House. This conclusion would not change even if the minister were to table the required statements today, tomorrow or the day after.
In failing to table the required statements the minister is not only breaching an order of the House as expressed in its statute but has also deprived members of their ability to verify that her reasons for exempting these regulations from the application of section 118 are sound and proper.
There can be no excuse for the minister's cavalier disregard of the statutory duty she owes to the House. Each of the regulations in question states in its preamble that the minister will lay a statement of reasons before each house as she is required to do by section 119 of the act. This is not a case where the minister was unaware of her duty.
Mr. Speaker, your predecessor was called upon in 1993 to rule on a similar question of privilege raised by the hon. member for Scarborough--Rouge River. The issue at that time concerned the failure of the minister of finance to table an order made under the Customs Act as it was his statutory duty to do. The member for Scarborough--Rouge River stated that he entertained no doubt that:
--the minister's failure to table a document required to be tabled by this House, whether intentional or accidental, tends to diminish the authority of the House of Commons and is something that might reasonably be held to constitute contempt by this House.
Speaker Fraser ruled on April 19, 1993, that a prima facie case of breach of privilege had been made and allowed the member to move a motion referring the matter to the Standing Committee on House Management. In his ruling Speaker Fraser reiterated that:
The requirements contained in our rules and statutory laws have been agreed upon by this House and constitute an agreement which I think all of us realize must be respected. Members cannot function if they do not have access to the material they need for their work and if our rules are being ignored and even statutory instruments are being disregarded.
The Speaker said he found it particularly disheartening that the government failed to table documents within the prescribed time and did not do so until after the matter was raised in the House. The Speaker noted that the tabling was a statutory requirement and quoted the member's comment:
It is difficult to conceive of any command of this House that could have more legitimacy than one contained in a law passed by this House.
The Speaker also agreed that disregard of a legislative command, even if unintentional, was an affront to the authority and dignity of parliament as a whole and the House in particular.
It should be noted that the statute in this case does not specify a particular time within which the minister must table a statement of reasons before both houses when a regulation is made without having first been laid in draft form before the House.
Does this mean that tabling of such a statement may be made at any time? Can it be years after the making of a regulation? The answer to both questions is no. In the absence of a specific tabling deadline the obligation of the minister must be understood to be an obligation to table her statement of reasons within a reasonable time following the enactment of the regulation made in reliance on subsections 119(2) or 119(3) of the Firearms Act.
It may be that reasonable people might disagree on whether a particular delay in tabling is reasonable or not in the circumstances. However, it is equally certain that no reasonable person would consider that a delay of two or three years is reasonable or was contemplated by the statute.
In any event the questions of whether or not a particular delay in fulfilling a tabling requirement was reasonable and whether there has in fact been a breach of the statutory duty imposed by subsection 119(4) are clearly at the heart of this question of privilege.
These are questions that the House itself will deal with in reaching a decision on the question of privilege.
At this stage, we are not concerned with a substantive determination of the question of privilege but only with a determination of whether or not the facts I have laid before the Speaker appear to give rise to a legitimate question of privilege. That is the only issue before the Speaker and, based on the ruling by your predecessor, Mr. Speaker, I suggest that the House should be allowed to deal with the substantive issue of privilege.
In closing, I believe that a review of this precedent will show that the repeated failure of the Minister of Justice, whom, by the way, I have given a notice to today, to table a statement of reasons in 16 instances for a period of over two years, beginning some three years ago, constitutes a prima facie breach of the privileges of the House.
Mr. Speaker, I am prepared to move an appropriate motion but I will seek advice from you. Should I table the motion today or later on when you so desire?